0320180036
06-12-2018
Ethan M.,1 Petitioner, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ethan M.,1
Petitioner,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Petition No. 0320180036
MSPB No. NY0432170176I2
DECISION
On March 5, 2018, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
Petitioner worked as a Benefits Authorizer at the Agency's Northeastern Processing Service Center facility in Jamaica, New York. Petitioner alleged that the Agency discriminated against him on the bases of disability and age when the Agency proposed to demote him, effective October 11, 2016, from the position of Benefit Authorizer, GS-9 to Customer Service Representative, GS-8 for unacceptable performance, following the implementation of an Opportunity to Perform Successfully (OPS) plan.
The record reflects that Petitioner has worked for the Agency for over 26 years. Sometime in January 2015, he was reassigned from the Agency's Garnishment Unit to Module 8 as a Benefit Authorizer. Benefit Authorizers are required to complete a two-part training program consisting of 9 months of classroom instruction, and a hands-on training module that could last up to 12-months where the trainee works on cases with the assistance of an assigned mentor.
In January 2015, during the second phase of his training, an audit was conducted of Petitioner's work. His mentor found a number of deficiencies and errors, which he memorialized in a summary dated February 4, 2015. Out of 13 cases reviewed, a total of 6 errors related to payment processing, technical errors, and informational errors were recorded. The mentor advised that Petitioner: (1) needed to become more proficient in researching procedural references on line; (2) required a lot of assistance to process his cases which accounted for low productivity; (3) did not have adequate knowledge of the program used to send notices; (4) had shown he could process cases, only with the assistance of his mentor; (5) needed to conduct a more thorough consistency check; and (6) needed to be better organized with the Agency's internal program policy information website.
On or around March 26, 2015, Petitioner met with his supervisor, who advised him that there were still concerns with his performance. Petitioner was advised that he was being put on a performance assistance plan (PAS), which would start at the end of March and run for 30 days. The purpose of the PAS was to give him an opportunity to work on the areas of concern and improve his performance. In May 2015, Petitioner met with his supervisor and was advised that he had not successfully completed the PAS, and that he would be put on an OPS plan, effective May 14, 2015.
Petitioner subsequently requested a reasonable accommodation of a modified keyboard and voice activated computer typing software to improve accuracy and production. The Agency approved the request and cancelled the OPS plan pending completion of his training on the assistive equipment. On August 6, 2015, Petitioner was put on another PAS, despite getting acclimated to the assistive software. By August 25, 2015, he was still lagging in productivity, and failed to exhibit acceptable performance in two critical areas: demonstrating job knowledge and achieving business results. By letter dated September 17, 2015, Petitioner was advised that he was being placed on another PAS which would remain in place for 120 days.
On November 12, 2015, a progress review was conducted and Petitioner was advised that his work continued to reflect inconsistencies in research and comprehending policy, and processing cases accurately. There had been little improvement overall in his work performance. Two more progress reviews held on December 4, 2015 and May 5, 2016, showed no significant improvement in Petitioner's performance. As a result, a proposal was made by letter dated May 23, 2016, to reduce Petitioner in grade from his Benefit Authorizer position to the position of Earnings Reviewer.
Petitioner timely requested informal EEO counseling, alleging that the proposal to demote him did not sufficiently explain why his performance was unsatisfactory, and that the Agency failed to accommodate him when it gave him "Dragon equipment and a different kind of keyboard" because the computer-assisted typing software he was issued was not compatible with the Agency's computer software which caused the typing program to malfunction. By letter dated October 11, 2016, the Agency upheld the demotion, but only one grade level to a GS-8 Customer Service Representative. On October 18, 2016, a final EEO Counseling Report and Notice of Right to file was issued, and Petitioner filed a complaint on November 9, 2016. A Report of Investigation was issued and Petitioner failed to exercise his right to request a hearing - the Agency issued a final decision (FAD) finding that Petitioner was not subjected to discrimination as alleged. Petitioner filed an appeal with the MSPB, and an MSPB Administrative Judge (AJ) issued an initial decision upholding the Agency's decision to demote, and determined that Petitioner was unable to show by preponderant evidence that the Agency's decision to demote him was motivated by discriminatory animus, or that he was treated differently than employees outside of his protected category. Additionally, the AJ found that the Agency had provided Petitioner with a reasonable accommodation, and had presented legitimate non-discriminatory reasons for the removal. Petitioner then filed the instant petition.
For Petitioner's affirmative defense of disparate treatment based on his age and disability, the AJ, among other things, applied the analytical framework set forth in the MSPB's decision Savage v. Department of the Army, 122 M.S.P.R. 612. In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. � 2000e-16 is a matter of civil service law. Id.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
In Petitioner's case, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of disparate treatment based on age and disability discrimination when the Agency demoted him; therefore, we will analyze this case according to the McDonnell Douglas paradigm.2 We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against him, as alleged.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, he 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Upon review of the record, the Commission finds that even assuming arguendo that Petitioner established a prima facie case of discrimination based on age and disability, the Agency provided legitimate, non-discriminatory reasons for his demotion. Petitioner presented no persuasive evidence of discriminatory animus surrounding the demotion. The record reveals that Petitioner was repeatedly provided with training and opportunities to improve his performance, and despite repeated one-on-one training on several topics, he failed to independently process his cases to completion. Like the MSPB, the Commission finds that Petitioner did not establish that the decision to demote him was based on any asserted protected bases.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no unlawful discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
____6/12/18______________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 The Commission notes that the only claim at issue in the instant petition is the demotion claim. Complainant's reasonable accommodation is the subject of another appeal pending before the Office of Federal Operations.
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