January B.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Apr 26, 2018

0520180265 (E.E.O.C. Apr. 26, 2018)

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

January B.,1
Complainant,

v.

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

Request No. 0520180265

Appeal No. 0120180298

Hearing No. 480-2013-00493

Agency No. SF-13-0012-SSA

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in January B. v. Soc. Sec. Admin., EEOC Appeal No.
0120180298 (Jan. 26, 2018). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29
C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29
C.F.R. § 1614.405(c).

On November 27, 2012, Complainant filed a formal EEO complaint alleging that the Agency
subjected her to discrimination and a hostile work environment on the bases of race (Caucasian),
age, religion (Jewish), disability, and in reprisal for prior protected EEO activity as evidenced by
multiple incidents including, inter alia, her supervisor called her while she was on leave to
inform her that she was being placed on a Performance Assistance Plan (PAP) and later berated
her for not calling back within a reasonable time; she was issued a proposed PAP document that
she considered flawed and was later issued a final PAP document; she was informed in a meeting

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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that the Group Supervisor would be her mentor which she questioned due to the Group
Supervisor’s hostile treatment of her; the Group Supervisor called her on her cell phone while
Complainant was on leave observing a Jewish religious holiday; the Group Supervisor asked her
to cancel travel arrangements for an Agency meeting in Baltimore because she was on a PAP;
the Group Supervisor criticized two decisions she submitted; she was denied the opportunity to
adequately review a PAP Weekly Progress Report and later another report before meetings; and
she did not receive a response regarding her request for a hardship transfer.

Following an investigation, Complainant requested a hearing. The EEOC Administrative Judge
(AJ) assigned to the matter granted the Agency’s motion for summary judgment and issued a
decision incorporating the Agency’s statement of undisputed material facts. The AJ found that
Complainant had not been subjected to discrimination, reprisal, or a hostile work environment as
alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision.

Complainant appealed the final order and, in January B. v. Soc. Sec. Admin., EEOC Appeal No.
0120180298 (Jan. 26, 2018), the Commission determined that the AJ properly adopted the
Agency’s statement of undisputed facts and that summary judgment in favor of the Agency was
appropriate. Next, the Commission determined that the alleged incidents were insufficiently
severe or pervasive to establish a hostile work environment. Further, the Commission found that
there was no evidence that the conduct at issue was based on discriminatory or retaliatory
animus. The Commission concluded that Complainant failed to show that the Agency’s reasons
for its actions were pretextual. As a result, the Commission found that Complainant had not
been subjected to discrimination, reprisal, or a hostile work environment as alleged.

In her request for reconsideration, Complainant expresses her disagreement with the appellate
decision and reiterates many arguments previously made on appeal. Complainant challenges the
AJ’s acceptance and recitation of the Agency’s statement of undisputed material facts and claims
that the Commission failed to examine the entire record. Further, Complainant contends that the
Commission failed to adjudicate this matter in a fair and objective manner. Complainant alleges
that the Agency has misused the Commission’s Federal Sector EEO Portal (FedSEP) to conceal
evidence and hide relevant information and the Commission used “secret evidence” in reaching
its decision. Accordingly, Complainant requests that the Commission grant her request for
reconsideration.

In response, the Agency notes that while Complainant argued that the appellate decision
contained multiple factual and legal flaws, she failed to identify any clearly erroneous
interpretation of material fact or law. In addition, the Agency contends that Complainant never
produced any persuasive evidence demonstrating that the Agency’s reasons for its actions were
unworthy of belief. Finally, the Agency argues that Complainant failed to show that the
Commission’s previous decision would have a substantial impact on any policy, practice, or
operation of the Agency. Accordingly, the Agency requests that the Commission deny
Complainant’s request for reconsideration.

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The Commission finds that the arguments raised by Complainant in the instant request for
reconsideration were largely raised in her previous appeal, fully considered, and rejected. While
Complainant challenges the AJ’s adoption and incorporation of the Agency’s statement of
undisputed facts, Complainant has not presented any persuasive arguments indicating that the AJ
erred in finding that she failed to set forth sufficient facts showing that there was a genuine issue
still in dispute. Further, despite Complainant’s arguments regarding what she claims is the AJ’s
flawed and deficient analysis, the Commission finds that the AJ’s decision appropriately
indicated that the record was fully developed; that the AJ considered all of the record evidence in
the light most favorable to Complainant; and that the evidence established that Complainant
failed to show that she was subjected to discrimination or reprisal as alleged. Finally, with
respect to Complainant’s arguments related to “judicial independence” and “secret evidence,” the
Commission notes that the Commission identified in the previous decision the “Enclosure” that
Complainant challenges as simply the Agency’s re-submission of the complaint file and
documents generated at the hearing stage. As previously discussed, Complainant had already
been provided these documents during the investigative and hearing stages. No new evidence
was submitted to or considered by the Commission. Aside from unsupported speculation,
Complainant has presented no evidence demonstrating that the Commission improperly
considered evidence not already in the record or engaged in any ex parte communications with
the Agency.

In sum, Complainant has not presented any evidence establishing that the Commission erred in
finding that the AJ properly granted summary judgment in this matter. Moreover, the
Commission finds that Complainant has not presented any evidence to support reconsideration of
the Commission’s finding that she failed to show that she was subjected to discrimination or
reprisal.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to DENY the request. The decision in EEOC Appeal No. 0120180298 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

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 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.

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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

April 26, 2018
Date