Brenton W.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 16, 2018

0120171969 (E.E.O.C. Nov. 16, 2018)

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

Brenton W.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120171969

Hearing No. 440-2016-00150X

Agency No. CHI-15-0846-SSA

DECISION

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 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.2 For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Probationary Senior
Case Technician (SCT), GS-7, at the Office of Disability Adjudication and Review in Chicago,
Illinois.

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.

2 Complainant filed his appeal prematurely after receiving a copy of the Administrative Judge’s
decision dated April 27, 2017. The appeal was cured upon the Agency’s issuance of its June 6,
2017 final order.
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Complainant averred that he experiences complications from several conditions including chronic
adjustment disorder, attention-deficit hyperactivity disorder (ADHD), major depressive disorder,
and osteoarthritic joint pain. Investigative Report (IR) 91-93; Agency’s Motion for Summary
Judgment (MSJ), Exhibit (Ex.) A (Complainant’s Deposition) 56-57.

Complainant was hired for his position in September 2014. Between September 2014 and
February 2015, he received on-the-job training and between February 23, 2015 and March 6, 2015,
he attended the Agency’s official training. His job responsibilities included scheduling cases,
organizing case files, and monitoring hearings for administrative law judges (ALJs).

The Group Supervisor (GS) averred that all employees in the scheduling unit were responsible for
the same duties and held to the same performance standards. GS also averred that Complainant
was initially assigned to schedule dockets for three ALJs, but his workload was reduced to two
ALJs during his training. At the conclusion of his formal training, his workload was expanded
back to three ALJs. IR 123.

Beginning on November 14, 2014, Complainant exhibited ongoing performance deficiencies. GS
averred that he had instructed Complainant to finish his inputs for the month of February in the
case processing management system (CPMS), but when GS checked for those inputs on November
14, 2014, he was unable to locate them. IR 243. On November 18, 2014, ALJ1 notified GS and
Complainant that her request for a medical expert for an upcoming hearing had not been fulfilled,
and the following day, GS had to follow up with Complainant twice to check on the status of the
ALJ1’s request. IR 244. On November 19, 2014, GS notified Complaint that he had failed to send
out several hearing notices and was deficient in his completion of electronic folder transactions.
IR 248-52. GS stated further that he had received a second complaint from ALJ1 concerning
Complainant’s failure to contact unrepresented claimants. IR 253. On November 26, 2014,
Complainant sent an e-mail asking employees to sign an online petition to protect veterans’
benefits. Believing that Complainant’s action violated the Hatch Act, GS notified Complainant
immediately that such solicitations were improper in the workplace. IR 254.

On December 3, 2014, GS notified Complainant that he had been sending emails for medical
expert contact information updates to the wrong recipients. IR 255. On December 6, 2014, GS
informed Complainant via email that he had scheduled cases for ALJ2 outside of the parameters
for scheduling and now needed to send out waiver notices. IR 257. On December 13, 2014, a
Clerk Reader emailed Complainant informing him that she had corrected errors he had made when
scheduling cases with multiple claims. IR 258-60. GS had ordered Complaint to complete his
scheduling for March 2015 by December 15, 2014, but as of December 17, 2014, Complainant’s
inputs for March 2015 had not been completed. IR 267.

On January 24, 2015, GS identified six cases that Complainant had processed incorrectly since
December 16, 2014. IR 263, 291, 194. As of February 23, 2015, the day Complainant was
scheduled to begin his formal training, GS notified Complainant that he had 67 overdue items
which was unacceptable and demonstrated a lack of control over his workload. IR 299, 306.

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On March 23, 2015, GS notified Complainant that many of his assigned cases had the wrong
employee name listed in the CPMS and asked Complainant to correct this error before he left for
the day, an issue that had been brought to Complainant’s attention several weeks earlier. IR 334-
39. On March 25, 2015, GS sent Complainant a high-priority work directive to prioritize aged
cases prior to scheduling non-aged cases. IR 340. On April 6, 2015, GS emailed Complainant
that he needed to ensure that his inputs into the CPMS were accurate and to make any needed
corrections by close-of-business the following day. IR 344. On April 11, 2015, GS notified
Complaint that he failed to complete a list of electronic folder transactions that should have been
completed by the end of the previous week. IR 349. On April 18, 2015, GS informed Complainant
that he could not put cases in the CPMS without his direct authorization; that Complainant had
previously been made aware of the need for GS’s authorization; and that Complainant was making
inputs for August, but should not have been making inputs into CPMS beyond July at that point.
IR 353.

On April 15, 2015, GS prepared Complainant’s performance evaluation which indicated that
although Complainant had completed his on-the-job training, he had ongoing performance issues;
including tardiness, problems completing work accurately, not following established scheduling
procedures, ineffective support to co-workers and claimants, inconsistently adjusted workload
priorities, and not completing assignments in a timely manner. The evaluation noted that GS had
to reassign some of Complainant’s work to his coworkers. IR 372. The Hearing Office Director
(HD) signed off on the performance appraisal as the reviewing official.

On June 29, 2015, the Acting Chief Judge (ACJ) issued Complainant a notice of termination. The
ACJ was GS’s immediate supervisor and was aware that GS had had several discussions with
Complainant regarding deficiencies in his performance. The notice stated that the termination was
effective as July 12, 2015, and was based on Complainant’s unsatisfactory performance and
conduct. Specifically, the Notice detailed Complainant’s failure to schedule aged inventory cases
in a timely manner, obtain necessary experts, burn CDs and generate invoices. IR 139, 152, 219-
25.

On September 15, 2017, Complainant filed an EEO complaint in which he alleged that the Agency
discriminated against him on the bases of race (African-American), sex (male), religion
(Christian), and disability (chronic adjustment disorder, attention-deficit hyperactivity disorder,
major depressive disorder, and osteoarthritic joint pain.) by:

1. Failing to provide him with a reasonable accommodation.

2. Subjecting him to harassment between January 2015 and July 12, 2015.

3. Terminating his employment during his probationary period on July 12, 2015.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing.
4 0120171969

Over Complainant's objections, however, the AJ assigned to the case granted the Agency’s October
6, 2016, motion for a decision without a hearing and issued a decision without a hearing on April
27, 2017. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he has established that he was subjected to discrimination
and a hostile work environment. Further, Complainant argues that he did not receive sufficient
training and was held responsible for perceived shortfalls, mistakes, and failures. Complainant
claims that Agency officials unjustly held him responsible for incomplete tasks to build a false
case about his performance. Complainant alleges that management officials overloaded him,
intimidated him, and unfairly evaluated him. Accordingly, Complainant requests that the
Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. 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); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105
(1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case.

In the instant case, we concur with the AJ’s finding that no genuine issue of material fact exists
with respect to any of the claims raised in Complainant’s complaint.

Denial of Reasonable Accommodation

Agencies are required to reasonably accommodate the known limitations of qualified individuals
with disabilities unless they can show that doing so would result in an undue hardship upon their
operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement
Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002).
5 0120171969

This obligation arises as soon as the Agency knows or reasonably should know that the employee
is disabled. See Werner A. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120162371 (Sept. 6,
2018) citing Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008).

Complainant claims the Agency denied his request for a reasonable accommodation of his
disability in April 2015, but also admits that he did not make a specific request for a reasonable
accommodation of his disability, but instead requested workload assistance. MSJ, Ex. A 77-80.
Complaint further testified that he did not have specific recollection of ever discussing his
disabilities with GS, but he assumed GS was aware of his disabilities because he was hired under
a disabled veterans program. MSJ, Ex. A. 83-85. GS stated that he was aware that Complainant
was a disabled veteran but was not aware of his disability because he never discussed it with
Complainant. IR 111. GS admitted that he received medical documentation after Complainant’s
hospitalization, which noted that Complainant was diagnosed with high blood pressure. However,
those documents did not include any limitations or medical restrictions for Complainant, or any
other information from which the need for a reasonable accommodation could be assessed. IR
111-12. GS further testified that Complainant was able to perform the essential functions of his
position without accommodation. GS also testified that Complaint never made any request for an
accommodation to him and that he, GS, never observed that any accommodations were necessary.
IR 112. We concur with the AJ that Complainant did not present evidence sufficient to establish
either that he needed a reasonable accommodation to perform the essential functions of his job or
that the Agency failed to provide him with one.

Hostile Work Environment

Next, we move on to Complainant’s claim of discriminatory harassment. To establish a claim of
harassment Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was
subjected to harassment in the form of unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on his statutorily protected classes;
(4) the harassment affected a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability to the employer. See
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been
“sufficiently severe or pervasive to alter the conditions of [Complainant’s] employment and create
an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

In support of his claim, Complaint identified the following incidents and comments: increased
workload imposed by GS; GS’s belittling his ideas to improve the Agency’s databases; GS
allegedly telling him to get the hell out of his office when he received a call during their meeting;
GS telling Complainant that he was going to use and abuse him during unit meetings; GS sending
Complainant a picture of a boxing cat captioned, “Bring it on;” GS’s failure to acknowledge his
disability or request for a reasonable accommodation; and GS making comments about the Bible
verses Complainant had posted in his cubicle, including asking if he expected the verses to help
him. Complainant also stated that GS told him that the “man upstairs did not have his back” and
that he was “living in hell.” IR 98-103.
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Complainant added additional incidents in support of his harassment claim, including: not
receiving credentials or travel vouchers and having his written request for a reasonable
accommodation confiscated when he was out on administrative leave just prior to his termination.
Complainant never provided any specific dates for the alleged incidents of harassment. IR 101-02;
MSJ, Ex. A 74-75; MSJ, Ex. D – Complainant’s Interrogatory Responses at ¶¶ 3, 7.

Even assuming that Complainant established that the alleged incidents were sufficiently severe or
pervasive to establish a hostile environment, Complainant has failed to show that in taking the
actions that comprise his harassment claim, Agency officials relied on considerations of his
protected classes. As to his workload, GS averred that during his training, Complainant’s
workload had actually been decreased to two ALJs while his fellow SCTs were assigned to cover
three ALJs. IR 123. To the extent that GS was “nitpicking” regarding Complainant’s performance,
the record does show that GS communicated with Complainant on at least forty occasions
regarding his performance problems. The emails and memoranda reflect GS’s concern that
Complainant was not meeting his performance standard. IR 113-17, 120, 127. As to the boxing
cat image, GS averred that he shared the image with Complainant because both of them had boxed
while they were in the military. Complainant had never told him that he found the image offensive.
IR 125; MSJ, Ex. E. GS denied making other comments that Complainant attributed to him, such
as the “use and abuse” comment. IR 124. Complainant admitted that some of the comments were
made as a joke and were not accompanied by any references to his protected classes. MSJ, Ex. A
68-69, 74-75. When asked why he believed that the alleged harassment occurred because of his
race, sex, religion, or disability, Complainant averred individuals outside of his protected classes
were treated more favorably. IR 101-02. Beyond his own assertions, Complainant has presented
neither affidavits, declarations, or unsworn statements from witnesses other than himself nor
documents that expose any weaknesses, inconsistencies, or contradictions in GS’s explanations
for the various incidents to such an extent that a reasonable fact finder could rationally find those
explanations unworthy of credence. See Opare-Addo v. U.S. Postal Service, EEOC Appeal No.
0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211
(May 30, 2008).

Since Complainant cannot show that the conduct at issue was based on discriminatory animus, his
harassment claim must inevitably fail.

Disparate Treatment

Finally, we address Complainant’s claim of disparate treatment in connection with his termination.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). As a first step, Complainant would normally establish a prima facie case
by demonstrating that he was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567,
576 (1978).

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The prima facie inquiry may be dispensed in this case, however, since GS articulated legitimate
and nondiscriminatory reasons for Complainant’s termination, namely his deficient performance
during his probationary period as documented in his performance appraisal, the letter of
termination dated June 29, 2015, and the memoranda and emails documenting those deficiencies
and GS’s efforts to correct them. IR 219-368. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983).

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation for terminating him is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
When asked by the EEO investigator why he believed that his termination was motivated by
unlawful considerations of his race, sex, religion and disability, Complainant repeated his assertion
that female employees, non-African-American employees, and employees of different religious
persuasions than he were treated fairly and he was not. IR 98-99. Yet he testified at his deposition
that he was not aware of any other employee at the Agency with a different sex, race, religion, or
who did not have disabilities that was treated differently than him with respect to his termination.
MSJ, Ex. A 162-63. Complainant also testified that GS never referenced his race, sex, religion, or
disability during his employment. MJS, Ex. A 70, 83-86, 88-89, 95. In view of these admissions,
and of the extensive documentation of his performance deficiencies by GS, we concur with the AJ
that Complainant failed to establish the existence of a discriminatory motive on the part of the
management officials.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final order.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 Agency’s request must be
submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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 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.

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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

November 16, 2018
Date