Alaina P.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 29, 2016

0120140839 (E.E.O.C. Jan. 29, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alaina P.,1
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120140839

Hearing No. 410-2011-00053X

Agency No. ATL-10-0546-SSA

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated August 5,
2013, finding no discrimination concerning her complaint alleging employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final decision
finding no discrimination.

BACKGROUND

In her complaint, dated May 29, 2010, Complainant, a former Agency employee, alleged
discrimination based on age (over 40) when on March 12, 2010, she received a notice of
removal from her GS-0962-07 Service Representative position effective March 26, 2010.
After completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On February 26,
2013, the AJ denied Complainant’s hearing request due to her failure to appear at the pre-
hearing conference and ordered the Agency to issue a final Agency decision. The Agency thus
issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory
reasons for its action, which Complainant failed to rebut. Complainant appealed.

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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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 (EEO MD-110), 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").

Initially, we find that the AJ was within his discretion to deny Complainant’s request for a
hearing. On appeal, Complainant indicates that her non-attorney representative was not able to
attend a pre-hearing conference which was scheduled at 11:00 am on February 26, 2013,
because the representative was in a car accident in the early morning on that day. We note that
it is Complainant’s responsibility to attend her pre-hearing conference and not her non-attorney
representative. Complainant did not attend her pre-hearing conference on February 26, 2013,
and did not provide any justification for her failure to do so. There is no evidence that
Complainant requested an extension to hold a pre-hearing conference to the AJ on or prior to
February 26, 2013. The record indicates that on February 28, 2013, Complainant’s
representative sent an electronic message to the AJ about the car accident and not being able to
attend the pre-hearing conference.

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged termination. The record indicates that Complainant was originally
hired as a Service Representative at the Agency’s Teleservice Center in Dallas, Texas, on
April 1, 2009, and upon her hardship transfer request, she was transferred to its Gwinnette
District Office, Norcross Georgia, in December 2009. Complainant’s manager indicated that
on March 12, 2010, he decided to remove Complainant during her probationary employment
period due to her poor performance. Specifically, management indicated that Complainant
received training from her supervisors and her mentor on a daily basis to perform her duties
(processing of a social security number application), but failed to perform her duties at an
acceptable level. Management also stated that: they received complaints from the customers
regarding misinformation provided by Complainant regarding their social security applications;
she had difficulty documenting her phone calls for blind customers; she failed to utilize their
appointment system; and she failed to perform her assignments in a timely manner.
Complainant acknowledged that she was indeed notified of a few errors she made in her
customers’ social security applications. The record indicates that on February 5, 2010,
Complainant’s supervisor discussed with Complainant customer complaints about her being
rude and unhelpful. Complainant does not dispute this. The record also indicates that on a
number of occasions in February 2010, the supervisor notified Complainant of her poor work
performance.
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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. We also find that Complainant
failed to show that she was treated less favorably than a similarly situated employee under
similar circumstances. Based on the foregoing, we find that Complainant failed to show that
the Agency’s action was motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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
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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.

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

January 29, 2016
Date