EEOC Appeal 2025001792

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.

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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.

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(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.

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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).

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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.

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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