[Redacted], Ron W., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jun 27, 2022

Appeal No. 2021002592 (E.E.O.C. Jun. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ron W.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002592 Agency No. HQ-20-0229-SSA DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 1, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor, GS-11, at the Agency’s Office of Appellate Operations in Baltimore, Maryland. On February 6, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on sex (male), age (55), and in reprisal for prior protected EEO activity when: 1. From June through November 14, 2019, the Agency subjected Complainant to nonsexual harassment in terms of working conditions, performance evaluation, assignment of duties, management criticizing senior or experienced attorneys, 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021002592 2 management encouraging him to resign, and management terminating his employment; 2. On October 29, 2019, management gave him an inaccurate performance evaluation; and 3. On November 12, 2019, he received a Notice of Termination to inform him that his probationary employment would be terminated, effective November 14, 2019.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. When Complainant failed to timely request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.3 The instant appeal followed. In its final decision, the Agency found that management articulated legitimate, nondiscriminatory reasons for terminating Complainant during his probationary period. First, his productivity had not sufficiently improved since his employment began, and the system the office uses to track productivity showed that his productivity rate was 15% in October 2019, five months after Complainant started, and had not meaningfully increased since his start date. This indicated to Complainant’s direct supervisor (S1), Supervisory Paralegal Specialist, GS-14, that Complainant was falling well short of the Agency’s expectation that new hires be at 70% productivity by 11 months of employment. One of his assigned mentors, Technical Assistant, GS-13, confirmed S1’s account and stated that Complainant showed little progression over his first three months, that he required extensive hand-holding from her for each case, and that his work performance and understanding of the position was lower than other trainees she had worked with over the years. 2 Complainant argues on appeal that the Agency failed to amend his complaint by adding two additional claims as he requested. These claims were “4. Whether the [Agency] subjected you to reprisal following EEO activity (Opposition and/or Participation) in terms of management terminating your employment in November 2019;” and “5. Whether the [Agency] subjected you to reprisal following EEO activity (Opposition and/or Participation) in terms of management giving you a negative performance evaluation in October 2019.” Because these claims are the same as Claims 2 and 3, which both include reprisal for prior protected EEO activity as a basis, the additional claims Complainant requests are redundant to the complaint and do not state separate claims. 3 On appeal, Complainant argues that the Agency admitted to discriminating against him because in the conclusion of its final decision, the Agency wrote “Accordingly, we find [the Agency] did discriminate against Complainant or subject him to harassment based on age, sex, or EEO activity, as alleged.” Based on the analysis throughout the Agency’s final decision and the wording of the quoted sentence, it is clear that the omission of the word “not” was merely a typographical error and that the Agency found no discrimination in this case. 2021002592 3 Second, S1 also had issues with Complainant’s conduct, finding that Complainant sometimes “engage[d] in unnecessary debate,” was not “receptive to feedback,” and hesitated to follow his mentor’s and S1’s guidance, which resulted in case delays. The Agency found, assuming that the October 29, 2019, mid-year performance review (Claim 2) constituted an adverse action, that the Agency articulated legitimate, nondiscriminatory reasons for its actions-namely the performance and attitude issues described above, including the fact that Complainant was not efficiently managing his cases. For example, he often “audited” hearing recordings from the underlying case when often that was not necessary. S1 also averred that during the meeting in which they discussed his mid-year performance review, Complainant called her a liar, began to “make grunting sounds and frantically scratched things out on the paper,” and generally acted in a loud and aggressive manner. Complainant’s claims of harassment included allegations that S1 criticized “senior or experienced” attorneys and administrative judges within the Agency, commented on Complainant’s age, commented that her best analysts were women or young analysts, verbally pressured Complainant to work faster and increase his productivity, asked Complainant if he was looking for other jobs, sabotaged Complainant’s efficiency by assigning him more time- consuming cases and switching his mentors, gave him inconsistent instructions, and acted physically threatening when Complainant noted inaccuracies in his mid-year performance review. Complainant says management did not follow up on complaints he made to S1, to his second-line supervisor, Division Director, GS-15, and to a Harassment Prevention Officer. The Agency found that Complainant could not meet his burden to show discriminatory or retaliatory harassment. There was no corroborating evidence that the comments about older attorneys or the physical intimidation had ever occurred. The Agency found that the other incidents Complainant alleged did not rise to the level of harassment and were instead the result of workplace disagreements and routine supervision, nor did the record show they were they based on his sex, age, or prior EEO activity. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. 2021002592 4 Regarding the discrete incidents in Claims 2 and 3, we find that Complainant failed to show that any of the actions were motivated by discrimination or retaliation. Complainant received a negative performance review for his lack of efficiency and unprofessional conduct in interacting with his mentor and S1. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail with regard to Claims 2 and 3. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). As to the remaining claim (Claim 1), we find that Complainant failed to show the Agency subjected him to a hostile work environment. Regarding Complainant’s allegations that S1 made rude comments about older attorneys, expressed favoritism for young female employees, and was physically intimidating toward him during a meeting about his performance review, we find that the record contains no persuasive evidence that the events occurred. Therefore, those incidents cannot contribute to Complainant’s claim of a hostile work environment. The record reflects that the remaining allegations were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Other non-management witnesses denied that Complainant was assigned a more difficult or time-consuming caseload or was otherwise treated differently by S1. We also find that Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. Based on the foregoing, we find that Complainant failed to show by a preponderance of the evidence that the Agency’s actions were motivated by discrimination or retaliation as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. 2021002592 5 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 2021002592 6 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 27, 2022 Date