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

Equal Employment Opportunity Commission

Jan 24, 2014

0120121488 (E.E.O.C. Jan. 24, 2014)

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

,
Complainant,

v.

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

Appeal No. 0120121488

Hearing No. 420-2011-00113X

Agency No. ATL-10-0770-SSA

DECISION
On January 20, 2012, Complainant filed an appeal from the Agency’s January 10, 2012, final
order concerning her 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

. 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 teleservice
representative at the Agency’s facility in Birmingham, Alabama. On August 17, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
basis of reprisal for prior protected EEO activity when: (1) in May 2010, management placed
and then removed fabricated documents into Complainant’s personnel file; and (2) in May
2010, and on July 30, 2010, management did not select Complainant to receive an award for
fiscal year 2009.1

1 In her formal complaint, Complainant also alleged that she was discriminated against when:
(3) on June 22, 2010, her manager subjected her to additional service observations; (4) on May
17, 2010, management issued her a negative mid-year performance appraisal; and (5) on
March 16, 2010, management issued Complainant a feedback report regarding discourteous
service. By letter dated October 18, 2010, the Agency dismissed claims (3) and (4), pursuant
to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim as Complainant failed to show that
she was aggrieved. The Agency also dismissed claim (5), pursuant to 29 C.F.R.
§1614.107(a)(2), for untimely EEO Counselor contact. Complainant has not challenged the

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the
case found that, after viewing the evidence in a light most favorable to Complainant, a decision
without a hearing was appropriate as there were no genuine issues of material fact. The AJ
issued a decision without a hearing on December 22, 2011. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged. On appeal, Complainant contends that the AJ erred
in issuing a decision without a hearing. Complainant also contends that the statements of
management officials are not worthy of belief and that her manager made false allegations
against her in order to prevent Complainant from receiving a performance award.

ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a final 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). 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 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to
affect the outcome of the case. If a case can only be resolved by weighing conflicting
evidence, it is not appropriate for an AJ to issue a decision without a hearing. In the context of
an administrative proceeding, an AJ may properly issue a decision without a hearing only upon
a determination that the record has been adequately developed for summary disposition. Petty
v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept.
of the Army

, EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. To prevail in a disparate
treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme

dismissal of these claims with the AJ or on appeal. Furthermore, we find dismissal of these
claims was proper.
0120121488

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fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that she was subjected to an
adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC Request No, 05950351 (Dec. 14,
1995).
Here, we concur with the AJ’s determination that assuming, arguendo, Complainant
established a prima facie case of reprisal discrimination, the Agency nonetheless articulated
legitimate, nondiscriminatory reasons for its actions. With respect to claim (1), the record
shows that in fiscal year 2009, three reports of discourteous service were filed against
Complainant. The record shows that Complainant received another report of discourteous
service in March 2010. Further, during a meeting with M1 to discuss the March 2010 report,
the three previous reports of discourteous conduct were discussed and Complainant was asked
to explain her actions and given the opportunity to provide a rebuttal to the claims in the
March 2010 report. Complainant contends that she was not informed of the three reports of
discourteous conduct from fiscal year 2010, however the record of counseling interview, dated
March 25, 2010, shows that the reports were discussed with her by her supervisor at that time.
Despite Complainant’s contention to the contrary, we find that she has proffered no evidence
beyond her mere speculative assertions to show that any reports were fabricated by M1, or that
M1 placed such reports into or removed them from Complainant’s personnel file. Therefore,
we find that Complainant has not shown that the Agency’s articulated reasons for its actions
were a pretext for unlawful reprisal discrimination.

With respect to claim (2), the record shows that in April 2010, management issued recognition
of contribution (ROC) awards to employees who demonstrated “individual performance and
contributions to the Agency’s mission” during fiscal year 2009. In order for an employee to be
eligible for an ROC award, he or she must receive a minimum of a 4.0 rating on their
performance evaluation. The record shows that Complainant received a score of 3.0 on her
fiscal year 2009 performance appraisal and was, therefore, ineligible for an ROC award.
Additionally, in July 2010, management issued exemplary contribution or service (ECS)
awards to employees in recognition of individual contributions to group achievement and
performance that promoted the mission of the Agency. The record shows that Complainant’s
supervisor states that he did not recommend Complainant for an ECS award as he did not
believe she had not performed any activities, in connection with her official duties, which
would qualify her for such an award. Further, S1 states that he had made Complainant aware
of performance issues including adhering to the office availability policy regarding telephone
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duty, being courteous to telephone callers, and the need to be more receptive to feedback.
Accordingly, we find that Complainant has not shown that she was subjected to unlawful
retaliation or that the Agency’s articulated reasons for its actions were pretextual.

CONCLUSION
We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
January 24, 2014