Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jun 14, 2013

0120120533 (E.E.O.C. Jun. 14, 2013)

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

,
Complainant,

v.

Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120120533

Hearing No. 440-2010-00081X

Agency Nos. CHI-09-0144SSA, CHI-10-0154SSA

DECISION

Complainant filed an appeal from the Agency’s final order dated October 24, 2011, finding no
discrimination with regard to her complaints. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

The record indicates that Complainant filed two complaints alleging discrimination based on
race (White) and in reprisal for prior EEO activity when:

(1) On October 30, 2008, she received an unfair performance appraisal and did not receive
an “expectations” discussion for 2009;
(2) In mid October 2008, and on November 28, 2008, management interfered with her job
duties when they reassigned some of her duties to others;
(3) From November 6, 2008, to April 30, 2009, she was harassed, e.g., management
denied her training, she encountered hostility from management and others, and she
received inaccurate performance discussions on March 6, 2009 and April 30, 2009;
(4) On June 15, 2009, through July 2, 2009, she received an unfair workload; and on July
7, 2009, she received less assistance (from June through September 2009);
(5) From July 7, 2009, through September 2009, she was harassed in terms and conditions
of employment, e.g., she received an unfair performance discussion on August 18,
2009; and
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(6) In the fall of 2009, she was not given priority consideration for a Claims Authorizer
position; she was not selected to serve as a SPIKE Trainer or for a professional
development course; and she received an overall unsatisfactory rating for the FY 09
period.
Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On October 3, 2011, the AJ issued a decision without
holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s
decision.

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 this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists. Moreover, despite Complainant’s contentions on appeal, we find the
record was fully developed.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was a
Post-Entitlement Technical Expert (PETE) in Module 13, Division 3, at the Agency’s Great
Lake Program Service Center in Chicago, Illinois. The Assistant Module Manager for Module
13 was Complainant’s first line supervisor (S1). The record indicates that S1 supervised two
PETEs, i.e., Complainant and another PETE (P1), African American, and about fifteen
Benefit Authorizers (BAs). The AJ noted that Complainant became a PETE in May 2007,
after having been a BA for about four years. P1 became a PETE in 2004, and had previously
worked as a BA for twelve years.

With regard to claim (1), the AJ indicated that Complainant received a “satisfactory” rating for
her 2008 performance appraisal at issue. The AJ determined that Complainant failed to show
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that she was treated less favorably than P1. On appeal, Complainant indicates that she does
not dispute her 2008 performance appraisal. Regarding her 2009 expectations discussion,
Complainant acknowledged that she received the 2009 expectations discussion document from
her second line supervisor (S2) on October 30, 2008. Despite Complainant’s contentions, S2
indicated that at the same time, she did meet with Complainant to discuss her expectations for
the year 2009, but the meeting was soon terminated at Complainant’s request due to another
engagement

With regard to claim (2), Complainant claimed that during the relevant time period at issue,
management interfered with her performance of duties and set conflicting expectations. S1
stated that it was Complainant’s responsibility to prioritize her case processing based on the
Agency’s goals. S1 also stated that she reassigned the review of an identified BA’s cases from
Complainant to another BA and P1 because the identified BA was not getting the help she
needed from Complainant during the relevant time period at issue.

Complainant also claimed that management assigned her BA duties. However, P1 indicated
that she, too, was assigned to help out BAs and to perform BA duties. Specifically, P1 stated
that both she and Complainant were to work on the oldest cases and claims first and also assist
BAs. P1 indicated that BAs did not go to Complainant for help but they came to her because
Complainant told them she was busy and also the information Complainant gave them was
confusing. P1 stated that she never turned away BAs when they came for help and she always
helped them if she could. P1 also indicated that management would get involved with their
prioritization of workload if cases got too old or if they saw one of them had quite a bit more
workload than the other.

With regard to claim (3), Complainant claimed that she was subjected to harsh performance
feedback and discussion during the 2009 appraisal period and was denied training. P1
indicated that Complainant and she received their PETE training and SPIKE training. P1
stated that the only training she received and Complainant did not was AURORA training.
After she received the AURORA training, stated P1, she trained Complainant regarding
AURORA as she was instructed to do so. Complainant does not dispute the foregoing
statements. We find that Complainant does not show that she was treated less favorably than
P1 regarding training.

Complainant claimed that on November 10, 2008, S1 asked Complainant to process some
cases the next day. In response, she told S1 that she would not be able to do that since the
next day was a holiday. Complainant alleged that S1 then punched her in the arm. S1 denied
the incident. The Deputy Operations Manager stated that Complainant brought the foregoing
incident to her attention three weeks after the incident. The Deputy Operation Manager
indicated that she, nevertheless, investigated the incident but found no evidence to support the
claim. Complainant later clarified that at the time of the incident, S1 was laughing and was not
angry at her.

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S2 denied giving Complainant inaccurate performance discussions during the relevant time
period at issue. Specifically, S2 stated that on March 6, 2009, she explained to Complainant
that the PETEs work as a team to achieve one goal. Complainant however had difficulty
understanding the concept. S2 indicated that she then had a formal discussion with
Complainant on April 30, 2009, with regard to her mid-year performance wherein she
discussed Complainant’s processing of claims and her interpersonal relationship with other
coworkers. Here, we find that Complainant failed to show that she was treated less favorably
than a similarly situated employee under similar circumstances.

With regard to claim (4), S1 stated that she assigned equal workload to Complainant and P1,
but Complainant always had more workload because P1 kept her workload caught up and
Complainant did not. S1 indicated that Complainant did not complete her assignments within
the established timeframes and did not process her work on a daily basis. S1 further stated that
Complainant was not reliable and she spent two hours a day on union business. Complainant
indicates that she lately spent less of her time on her union work because she had to work on
her EEO case. Complainant acknowledged that management approved her use of official time
to work on her EEO case. P1 stated that when Complainant was off work, i.e., on vacation,
she was expected to keep up with her workload as well as Complainant’s workload. P1 further
stated that in order to keep up with all the work, she would skip her breaks or work credit time
or compensatory time. P1 indicated that Complainant however did not reciprocate.
Specifically, P1 stated that when she came back from her vacation, i.e., from June 15, 2009,
through the end of June, she had 49 claims waiting for her. We do not find that the Agency
provided less assistance as claimed by Complainant or that, even if less assistance was
provided, such action was motivated by discrimination.

Despite Complainant’s contentions, the Operations Specialist, identified by Complainant,
denied giving less assistance to her during the relevant time period at issue. Complainant also
claimed that in June 2009, she was awarded a small cash award ($257) whereas P1 received a
large cash award ($1,079). S2 indicated that Complainant’s award was based on the facts that
she was in her PETE job for a year and a half and that she was still experiencing difficulties
with her duties. Upon review, we find that Complainant failed to show that she was treated
less favorably than a similarly situated employee under similar circumstances. S2 stated that
Complainant also received $275 cash award for “SPIKING.”

With regard to claim (5), S1 denied harassing Complainant or giving her an unfair
performance discussion during the relevant time period at issue. During the August 18, 2009
meeting, stated S1, she discussed with Complainant her performance, her interpersonal skills,
and her ability to work with others as well as her treatment of others. Specifically, S1
indicated that she received complaints from Complainant’s coworkers concerning her
inappropriate behavior.
With regard to claim (6), Complainant withdrew her claims regarding not being selected to
serve as a SPIKE Trainer or for a professional development course. We find, regarding the
remaining part of claim (6) that the Selecting Officer (SO) for the position at issue indicated
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that Complainant did receive priority consideration for the position. Specifically, the SO stated
that she reviewed Complainant’s application and the information she submitted. The SO also
stated that she then called the Operation Manager in Complainant’s Division and asked her
about Complainant’s work performance. The Operation Manager told her that Complainant
had not yet learned her duties as a PETE and her job knowledge was limited and that she was
not ready for promotion. The Operation Manager also told her that Complainant’s
interpersonal skills were very poor and although she was a team leader, she did not get along
with her employees. The SO stated that her decision not to select Complainant was not based
on any discriminatory basis but was based on the information she received from the Operation
Manager. Despite Complainant’s contentions on appeal, the record indicates that the
Operation Manager submitted her affidavit during the investigation of the instant complaint
wherein she did not contradict the foregoing statements. Furthermore, Complainant failed to
show that her qualifications for the position were plainly superior to the selectees’
qualifications or that the Agency’s actions were motivated by discrimination. See Wasser v.
Department of Labor, EEOC Request No. 05940058 (November 2, 1995).

With regard to the performance appraisal, Complainant stated that she was not claiming that
she received an overall “unsatisfactory” appraisal rating but, rather, the fact that the appraisal
was biased and defamatory. S1 stated that she gave Complainant “satisfactory” rating for the
FY 2009 period. S1 stated that Complainant needed considerable improvement in her
interpersonal skills. Specifically, S1 indicated that she received a number of complaints about
Complainant’s inappropriate behavior from other employees in the Module in addition to the
complaints from the employees, described in claim (5). S1 indicated that she also considered
Complainant’s aggressive, rude attitude toward her and her failure to complete her assigned
work causing P1 to do most of the work to help employees. S1 stated that Complainant did not
receive an “unsatisfactory” rating in any area but that she was given “advice on how to
improve” in all of the areas and was given an overall rating of “satisfactory” in her FY 2009
performance appraisal. The record indicates that Complainant subsequently moved out of
Module 13 and joined Module 6 in October 2009.

After a review of the record, we find that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for the alleged incidents. Furthermore, we find that Complainant
failed to show that she was treated less favorably than a similarly situated employee under
similar circumstances. With regard to her claim of harassment, we find that Complainant
failed to establish the severity of the conduct in question or that it was related to any protected
basis of discrimination. Based on the foregoing, we find that Complainant has failed to show
that the Agency’s actions were motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.

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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
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
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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

June 14, 2013
Date