EEOC Appeal 2024003669

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Chad T.,1
Complainant,
v.
Frank Bisignano,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 2024003669
Hearing No. 440-2024-00022X
Agency No. CHI-23-0435-SSA
DECISION
On May 29, 2024, Complainant filed an appeal with the Equal Employment
Opportunity 	Commission 	(EEOC 	or 	Commission), 	pursuant 	to 	29 	C.F.R. 	§
1614.403(a), prior to the issuance of the Agency’s June 10, 2024, final order
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., 	Section 	501 	of 	the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 order.
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.

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At the time of events giving rise to this complaint, Complainant worked as a GS-
0105-12 Title II Technical Expert (TE) at the Agency’s Milwaukee North Office in
Milwaukee, Wisconsin. Complainant began working for the Agency in September
2001 and had worked as a TE since February 2018.
On April 10, 2023, Complainant initiated EEO counselor contact. On May 15,
2023, Complainant filed a formal complaint, which he subsequently amended,
alleging that the Agency discriminated against him on the bases of sex (sexual
orientation (gay)),2 disability (physical), age (58 years old), and reprisal for prior
protected EEO activity (initiating the instant complaint) when:
1. 	On April 5, 2023, he became aware of his nonselection for the GS-
0105-12 Title II TE position advertised under vacancy announcement
number IS-11849982-IVOL-VM-229.
2. 	Since April 5, 2023, and continuing, he was subjected to harassment
regarding nonselection, assignment of work, a leave request, yelling,
and threatening comments.
3. 	On December 27, 2023, he became aware of his nonselection for the
GS-0105-12 Operations Supervisor (OS) position advertised under
vacancy announcement number SI-12088526-23-IVOL-478.
Complainant’s disabilities were Tourette’s Syndrome and vision loss. According to
Complainant, his Tourette’s Syndrome was known within the office, as his nervous
tics and vocalizations could be misinterpreted as aggression or anger. Complainant
averred that, beginning in or around 2022, he had asked for visual aids for his
vision issues. Complainant stated that management was aware of his sexual
orientation and had met his husband. According to Complainant, his supervisor
(Supervisor-1; over 40 years old) was aware of his age because he and Supervisor-
1 were the same age and had discussed their retirement plans.
2 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on
sexual orientation or transgender status is prohibited under Title VII. 590 U.S. 644,
140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No.
0120133080 (July 15, 2015) (an allegation of discrimination based on sexual
orientation states a claim of sex discrimination under Title VII because sexual
orientation is inherently a sex-based consideration).

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Complainant applied for TE and OS positions in the Downtown Milwaukee Office,
and he was on the best qualified list for both vacancies. According to Complainant,
although he already held a TE position, working in a different field office could
present different opportunities. The Downtown Milwaukee Ditrct Manager was the
selecting official (SO-1; over 40 years old) for both vacancies. From August 2011
through July 2015, SO-1 and Complainant worked in the same field office.
The selectee for the TE position (Selectee-1; under 40 years old) was a GS-0105-
11 Claims Representative in the Downtown Milwaukee Office who had worked for
the Agency since April 2016. SO-1 contacted candidates’ supervisors for reference
checks for this position but did not interview the candidates. SO-1 asked the
supervisors to rate the candidates from 1 to 4 in 10 categories and to state whether
they highly recommended, recommended, recommended with reservations, or did
not 	recommend 	each 	of 	the 	candidates. 	Supervisor-1 	“recommended”
Complainant, who received 28 points based on the following ratings: 3 in overall
quality of work; 4 in demonstrates job knowledge; 4 in accuracy; 2 in problem
solving; 	4 	in 	timeliness; 	2 	in 	flexibility; 	2 	in 	demonstrates 	leadership; 	4
interpersonal skills (public); 2 in interpersonal skills (coworkers, etc.); and 1 in
interpersonal skills (management). Selectee-1 was “highly recommended” by his
supervisor and received a total of 34 points based on the following ratings: 4 in
overall quality of work; 3 in demonstrates job knowledge; 4 in accuracy; 3 in
problem solving; 4 in timeliness; 4 in flexibility; 3 in demonstrates leadership; 3 in
interpersonal skills (public); 3 in interpersonal skills (coworkers, etc.); and 3 in
interpersonal skills (management). SO-1 stated that he selected Selectee-1 based on
the strength 	of 	his 	supervisor’s 	recommendation 	and 	based 	on 	his 	personal
observations of Selectee-1’s skills and abilities.
The selectee (Selectee-2; over 40 years old) for the OS position was a TE in the
Milwaukee West Office who began working for the Agency in July 2001 and
began working as a TE in February 2014. For the OS position, SO-1 conducted
both 	reference 	checks 	with 	candidates’ 	supervisors 	and 	interviews 	with 	the
candidates. SO-1 asked the candidates’ supervisors to rate the candidates from 1 to
4 in 12 categories and to state whether they highly recommended, recommended,
recommended with reservations, or did not recommend the candidates. Supervisor-
1 “recommended” Complainant, who received 41 points based on the following
ratings: 3 in overall quality of work; 4 in demonstrates job knowledge; 3 in
accuracy; 4 in integrity (systems/disclosure); 3 in problem solving; 4 in timeliness;
3 in flexibility; 3 in demonstrates leadership; 4 in ability to mentor/coach; 4 in

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interpersonal skills (public); 3 in interpersonal skills (coworkers, etc.); and 3 in
interpersonal skills (management). Selectee-2 was “highly recommended” by her
supervisor, who rated Selectee-2 4 points in each category, for a total of 48 points.
SO-1 conducted the interviews for the OS position with the Assistant District
Manager (ADM-1), and they rated the candidates’ responses to 10 questions from
1 to 3 points. Complainant received 23 points from SO-1 and 24 points from
ADM-1, for a total of 47 points. Selectee-2 received 25 points from SO-1 and 24
points from ADM-1, for a total of 49 points. SO-1 stated that he selected Selectee-
2 because, based on the reference checks and interviews, she was the best
candidate for the position.
Complainant alleged that he was often assigned more work than others in his unit,
as well as less time to complete his work. According to Complainant, when he
tried to raise the issue with Supervisor-1, Supervisor-1 would either get combative
and 	argumentative 	or 	ignore 	him 	altogether. 	Complainant 	averred 	that 	the
additional assignments became more frequent after he initiated his EEO complaint
in April 2023 but subsided within the first two weeks of June 2023.
Complainant stated that, in May 2023, he was talking to a coworker and expressing
concern about a new coworker’s training and surprise that he had not been asked to
work with the new coworker. Complainant alleged that Supervisor-1 approached
them and yelled that the coworker’s training was none of Complainant’s concern.
At the beginning of the day on June 1, 2023, Complainant sent Supervisor-1 an
instant message with concerns regarding his workload. Supervisor-1 responded in
all 	caps 	that 	he 	“had 	his 	reasons” 	for 	the 	assignments. 	Shortly 	thereafter,
Complainant received a call from his medical provider’s office about an immediate
opening for a cancer screening because of a cancellation. Complainant sent
Supervisor-1 an instant message, requesting permission to leave work for the day.
Complainant waited about 10 minutes without receiving a response before leaving
for the day. 	Prior to 	leaving 	work, 	Complainant 	had 	not 	sent 	an 	email 	to
management, called management, or submitted a leave request through the time
and attendance system.
On the morning of June 2, 2023, Complainant submitted a request for eight hours
of sick leave for June 1, 2023. Supervisor-1 approached Complainant’s desk and
shouted that they needed to have a talk. Complainant alleged that, in Supervisor-
1’s office, Supervisor-1 yelled that Complainant did not get to decide when he

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came to work or whether or not he got approved leave and that this was
Supervisor-1’s decision. Complainant averred that Supervisor-1 threatened to deny
Complainant’s leave request even though he had plenty of sick leave available and
tried to explain the time-sensitive nature of his request for sick leave. The
Milwaukee North District Manager approved Complainant’s sick leave request on
June 2, 2023.
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 (AJ). Complainant timely requested a
hearing before an AJ.
The 	Agency 	submitted 	a 	motion 	for 	a 	decision 	without 	a 	hearing, 	which
Complainant failed to oppose. The AJ granted the Agency’s motion and issued a
decision by summary judgment in favor of the Agency, finding no discrimination.
The instant appeal followed.
This initially premature appeal has since been cured by the Agency’s issuance of a
final order fully implementing the AJ’s finding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.
Complainant did not submit a statement or brief on appeal.
As this is an appeal from a decision issued without a hearing, 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 (EEO MD-110), at Chap. 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”); see also EEO MD-110, at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an
administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

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The Commission’s regulations allow an AJ to grant summary judgment when they
find that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An
issue of fact is “genuine” if the evidence is such that a reasonable fact finder could
find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). A fact is
“material” if it has the potential to affect the outcome of the case. Id. When
considering summary judgment, facts and inferences must be viewed in the light
most favorable to the non-moving party. See Ricci v. DeStefano, 557 U.S. 557,
586 (2009).
To successfully oppose a decision by summary judgment, a complainant must
identify, with specificity, facts in dispute either within the record or by producing
further supporting evidence and must further establish that such facts are material
under applicable law. 29 C.F.R. § 1614.109(g)(2); Celotex, 477 U.S. at 322-24; see
also EEO MD-110, at Chap. 7, § III.E. Such a dispute would indicate that a hearing
is necessary to produce evidence to support a finding that the Agency was
motivated by discriminatory animus. Here, however, Complainant has failed to
establish such a dispute.
Assuming that Complainant could establish a prima facie case of discrimination
with respect to the nonselections, we find that the Agency provided legitimate,
nondiscriminatory 	explanations 	for 	its 	actions. 	Selectee-1 	and 	Selectee-2’s
references 	were 	provided 	by 	different 	supervisors 	in 	different 	offices, 	and
Complainant has not identified a genuine issue of material fact that Supervisor-1’s
ratings during the reference check processes were based on his membership in any
protected class. Complainant similarly has not identified a genuine issue of
material fact regarding pretext for discrimination as it relates to the interviews for
the OS position.
Considering Complainant’s harassment claim, he alleged that he was given more
tasks and less time to complete them than his coworkers for approximately two
months, that Supervisor-1 yelled at him, and that Supervisor-1 threatened to deny
his leave request on one occasion when he left work without advance approval. A
reasonable finder of fact could not conclude that Complainant established that the
alleged harassment was based on his membership in any protected class or that the
harassment was sufficiently severe or pervasive to constitute a hostile work
environment or would deter a reasonable employee from engaging in protected
EEO activity.

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Having thoroughly reviewed the record, and construing any inferences raised by
the undisputed facts in favor of Complainant, we find that a reasonable factfinder
could not find in Complainant’s favor. Upon careful review of the AJ’s decision
and the evidence of record, as well as the parties’ arguments on appeal, including
those 	not 	specifically 	referenced 	herein, 	we 	conclude 	that 	the 	AJ 	correctly
determined 	that 	the 	preponderance 	of 	the 	evidence 	did 	not 	establish 	that
Complainant was discriminated against by the Agency as alleged.
Accordingly, 	we 	AFFIRM 	the 	Agency’s 	final 	order 	implementing 	the 	AJ’s
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
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.
Requests for reconsideration must be filed with EEOC’s Office of Federal Sector
(OFS) 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 their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, 	Complainant 	can
submit their request and arguments to the Director, Office of Federal Sector, 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,

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NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s
request to reconsider shall be deemed timely filed if OFS 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 their 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
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 their 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.
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.

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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:
T. Gimbrere
_______________________
T.Gimbrere, Acting Director
Office of Federal Sector
9/21/2026
Date