2025001792•EEOC Appeal 2025001792
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Filiberto H.,1 Complainant, v. Frank Bisignano, Commissioner, Social Security Administration, Agency. Appeal No. 2025001792 Hearing No. 530-2024-00237X Agency No. NY-24-0387-SSA DECISION On February 25, 2025, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 3, 2025 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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.
2025001792 2 During the period at issue, Complainant worked as an Operations Supervisor at the Agency’s Toms River Social Security facility in Toms River, New Jersey. On February 23, 2024, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on religion (Christian), disability (mental), and in reprisal for prior protected EEO activity when: 1. On January 8, 2024, Agency management refused to remove an expired reprimand from his electronic 7B folder; and 2. On January 8, 2024, Complainant alleged he was subjected to non- sexual harassment in terms of removing an expired “reprimand”2 in electronic 7B (e7B) folder, promotions and position opportunities, and working conditions. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s October 21, 2024, motion for a decision without a hearing. On February 4, 2025, the AJ issued a decision without a hearing. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed.3 In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. 2 Although Complainant asserts that he was issued a “reprimand,” the Agency asserts, and the record so supports, that Complainant was issued a “counseling memorandum” and we will use that term in our decision. 3 Complainant appealed the AJ’s decision directly, prior to the Agency’s issuance of its final decision adopting the AJ’s determination of no discrimination.
2025001792 3 (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). An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. We carefully reviewed the record and found that it is adequately developed. We will now address the merits of the case, as follows. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Regarding claim 1, the Agency articulated its legitimate, nondiscriminatory rationale for why the expired counseling memorandum remained in Complainant’s electronic e7B folder. The Agency indicated that the counseling memorandum is the same memorandum at issue in a separate case pending before an AJ, and that the Office of General Counsel had sent “litigation hold” notices which instructed Agency management to not delete any relevant information, which included this memorandum. Moreover, Complainant’s e7B file includes a message indicating that “this e7B is currently on hold; the folder and its contents cannot be purged or deleted.” Complainant has not shown that this articulated reason was pretextual.
2025001792 4 When considering the claims in the context of harassment, the record reflects the following matters: on June 27, 2023, the District Manager (DM2) denied Complainant’s request to be excused from mandatory training; on September 28, 2023, DM2 told Complainant to “have a glass of vodka and [DM2 will] have some wine tonight.” DM2 also told Complainant that he spoke out of both sides of his mouth. Moreover, if claim 1, discussed above, is considered in the context of a comprehensive harassment claim, these matters in their totality do not rise to the requisite level of severity. Regarding DM2’s comments. Complainant may have indeed deemed them unwarranted. However, anti-discrimination laws are not a “general civility code” that guarantees a pleasant working environment. Oncale v. Sundowner Offshore Services. Inc., 523 U.S. 75, 80 (1998). On appeal, Complainant fails to demonstrate that he was subjected to conduct that rose to the level of severity or pervasiveness to qualify as harassment. We AFFIRM the Agency’s final order adopting the AJ’s finding of no discrimination. 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).
2025001792 5 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, 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.
2025001792 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: T. Gimbrere __________ Chaudhry’s signature T. Gimbrere, Acting Director Office of Federal Sector September 17, 2026 Date
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