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

Equal Employment Opportunity Commission

Jan 26, 2018

0120180298 (E.E.O.C. Jan. 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.

Appeal No. 0120180298

Hearing No. 480-2013-00493

Agency No. SF-13-0012

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated October 13, 2017, finding no discrimination
with regard to her 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., 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.
For the following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In her complaint, Complainant alleged discrimination based on age (over 40), disability (side
effects related to cancer treatments, visual impairment, bilateral knee arthritis), race (White),
religion (Jewish), and in reprisal for prior EEO activity when she was subjected to disparate
treatment and non-sexual harassment in that:

(1) On August 17, 2012, the Group Supervisor, her immediate supervisor (S1) called her
while she was on scheduled leave to inform her that she was placing her on a

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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Performance Assistance Plan (PAP). Later that afternoon, S1 called her on her cell
phone and berated her for not calling her back “within a reasonable time.”

(2) On August 21, 2012, she was issued a proposed PAP document via email, which she
considered extremely flawed and on September 13, 2012, S1 issued a final PAP
document effective September 17, 2012, for 90 days.

(3) On August 29, 2012, she was called to a meeting to discuss the proposed PAP. She
was informed that S1 would be her mentor which she questioned due to S1’s hostile
treatment of her.

(4) On September 17 and 18, 2012, S1 called her on her cell phone for a non-emergency
matter while she was on leave observing a Jewish religious holiday.

(5) On September 18, 2012, S1 informed her that she opposed her participation in an
Agency meeting in Baltimore scheduled for September 27, 2012, because she was on
a PAP and was not considered an employee “in good standing.” S1 asked her to
cancel all travel arrangements.

(6) On October 3, 2012, she was subjected to unreasonable hostility when she received
an email from S1 criticizing two decisions she submitted on September 24, 2012. She
was later criticized at a PAP meeting regarding her submission of the two cases.

(7) On October 3, 2012, 30 minutes prior to the start of a PAP meeting, S1 sent her and
her representative a 10-page single spaced typed document entitled “Performance
Assistance Plan (PAP) Weekly Progress Report.” Her request for time to adequately
review the document was denied. Further, her request for a productivity index for
August and September 2012, was not granted.

(8) On October 4, 2012, S1 manipulated her case assignments in order to lengthen her
average case processing time when she assigned her two cases late in the afternoon
knowing she would be out of the office until October 10, 2012.

(9) On October 10, 2012, S1 failed to provide her adequate time to review a six-page
single spaced typed report prior to attending a meeting with S1.

(10) As of October 10, 2012, she has not received a response to her July 2, 2012
request for a hardship transfer.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On December 9,
2013, the Agency filed a Motion for Summary Judgment and Complainant filed a response to the
Agency’s motion opposing a decision without a hearing on January 10, 2014. On January 21,
2014, the Agency filed its reply in support of its Motion for Summary Judgment.
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On September 29, 2017, the AJ issued a decision without holding a hearing, finding no
discrimination. The Agency’s final order implemented the AJ’s decision. Complainant appeals
the Agency’s final order.2

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.

In the instant case, the AJ incorporated by reference all the undisputed facts in the Agency’s
Motion for Summary Judgment. The AJ, assuming arguendo that Complainant had established a
prima facie case of discrimination, determined that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. At the relevant time, Complainant was employed by
the Agency as an Attorney Advisor, GS-12, in its Office of Disability Adjudication and Review
(ODAR), West Los Angeles Hearing Office, Los Angeles, California. Complainant had been in
that position since 1998. S1 was Complainant’s immediate supervisor from April 2011, to
January 25, 2013, at which time she was placed on a detail as the Hearing Office Director in
Long Beach, California, for 60 days. S1 came back to her supervisory position in the West Los
Angeles office but did not supervise Complainant. As an Attorney Advisor, Complainant’s
primary duties were to write administrative law decisions for Agency’s Administrative Law
Judges (ALJs). The record indicates that during the relevant time, Complainant participated in

2 Despite Complainant’s contentions, we note that the Agency’s December 27, 2017 appeal brief
was within 30-day time limit upon its receipt of Complainant’s November 18, 2017 appeal brief
on November 27, 2017. 29 C.F.R. § 1614.403(f). Complainant also claims that the Agency
improperly failed to provide her the exhibits enclosed along with the Agency’s appeal brief
although they were submitted to the Commission. However, the record reflects and Complainant
does not dispute that the Agency has already provided the enclosed exhibits(i.e., the complaint
file, including the report of investigation, the Agency’s motion for summary judgement,
Complainant’s opposition thereto, and AJ’s decision) to her.
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flexi place program working at home on Mondays and Fridays and in the West Los Angeles
Hearing Office on Tuesdays, Wednesdays, and Thursdays.

Regarding claim (1), S1 acknowledged calling Complainant on August 17, 2012, Friday, to
discuss S1’s decision to place her on a PAP because that day was Complainant’s normal flexi
place day. S1 indicated that although she signed Complainant’s leave slip the day before, she did
not remember Complainant had scheduled leave because she signed numerous leave slips and
she believed Complainant was working from home since it was Friday, her flexi place day. S1
stated that she would not have called Complainant had she known Complainant was on leave.

Regarding claim (2), S1 indicated that during the relevant time, Complainant was issued the PAP
for her poor performance. The record indicates that on May 10, 2012, during her mid-year FY
2012 performance appraisal, S1 issued Complainant a memorandum indicating that she was not
writing enough legally sufficient drafts, and she could increase both the quantity and quality of
the drafts she wrote. Therein, S1 specified that: in October 2011, an ALJ placed Complainant’s
draft in correction status due to concerns that she cited inapplicable facts and incorrectly
described the main issue in the case; in December 2011, she failed to follow the ALJ’s
instruction utilizing a specific template which caused the ALJ to issue amended decisions; in
February 2012, she failed to follow the basic instructions of the ALJ regarding the electronic file
and S1 had to revise her draft decision; in March 2012, the ALJ expressed concern that her draft
failed to discuss medical objective findings or lack thereof; on December 21, 2011, an ALJ
provided her with feedback on her draft and asked her to clarify/address certain medical issues
and when her second and third drafts did not adequately address such, the ALJ reassigned the
case to another attorney; in February 2012, two ALJs placed her drafts in correction status due to
insufficient analysis thereof; in February and March 2012, her first, second, and third drafts
lacked adequate discussion of the evidence and S1 reassigned the case to another attorney since
the ALJ would be unavailable to review her fourth draft; and, in April 2012, an ALJ informed S1
that her drafts contained no analysis of the claimants’ allegations of severity and merely
contained blanket statements and S1 reassigned these cases to a senior attorney. Complainant
signed, without any protest, her receipt of the foregoing memorandum on May 10, 2012.

S1 also indicated that from the start of fiscal year 2012, until March 2012, Complainant’s
cumulative Decision Writer Statistical Index was 87% whereas the office average was 104%
which showed that she was not meeting expectations with respect to writing timely and legally
sufficient draft decisions within the benchmarks to complete drafts. S1 stated that she decided to
place Complainant on a PAP due to her continuing performance issues, including factual
inaccuracies in describing evidence and a lack of articulation of the supporting rational for the
ALJ’s deposition. In the PAP dated September 13, 2012, S1 cited seven incidents from March
2012, to July 25, 2012, wherein which AJLs complained to S1 about Complainant’s poor drafts.

Regarding claim (3), S1 indicated that she decided to mentor Complainant during the PAP period
since S1 was an experienced attorney who had knowledge in reviewing draft decisions.
Complainant objected to that and asked for either one of two identified Senior Attorney Advisors
as her mentor, but they were not available to mentor her during the relevant time. S1 indicated
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that she then tried to assign one identified Senior Attorney Advisor who was available at the
relevant time as her mentor but Complainant objected/rejected the offer. An identified Attorney
Advisor stated that it was her experience that the mentor was generally the employee’s
immediate supervisor, as S1 was for Complainant.

Regarding claims (4) and (5), S1 acknowledged calling Complainant on September 18, 2012, as
directed by her supervisor, a Hearing Office Director, after they received the information on
September 17, 2012, that Complainant was making travel arrangements for Government Travel
for which she nor any management had approved. S1 indicated that on September 18, 2012, the
Director instructed S1 to call Complainant on September 18, 2012, to cancel her travel
arrangement immediately. The Director confirmed the foregoing statements. S1 also stated that
since Complainant was corresponding with the Central Office on her day off, September 17,
2012, to make travel arrangements for government travel, S1 felt it was permissible to call her on
that day and it was also important to call her immediately before she booked a flight as she was
in the process of booking it. S1 indicated that she was aware Complainant was on leave but did
not recall whether she was aware Complainant was observing a religious leave holiday.

S1 noted that on September 20, 2012, she learned that Complainant had been selected by the
union to attend a conference in Baltimore and her travel had been approved by headquarters but
had not been communicated to the region or to her office. S1 denied telling Complainant that S1
opposed her participation in that conference. Furthermore, Complainant was allowed to attend
the conference.

Regarding claim (6), S1 denied treating Complainant with unreasonable hostility regarding any
of her decisions as alleged at the relevant time. The record indicates that on October 9, 2012, S1
issued Complainant her PAP weekly progressive report notifying her that, among other incidents,
on October 3, 2012, an ALJ complained to S1 that Complainant submitted her draft directly to
the ALJ instead of submitting initially to S1 during the PAP period under the terms of the PAP.
The record also indicates that on October 10, 2012, S1 issued Complainant her PAP monthly
memorandum notifying her that, among other issues, her two drafts submitted on September 24,
2012, contained errors in the Residual Functional Capacity section which had to be corrected.
Complainant does not dispute this.

Regarding claim (7), S1 indicated that on September 20, 2012, S1 informed Complainant and her
union representative that weekly meetings would occur every Wednesday at 10 A.M. Thirty
minutes prior to the October 3, 2012 meeting, S1 informed Complainant via email that if she
needed additional time to discuss the attached memo to let S1 know; otherwise she would see her
at 10:00 A.M. Neither Complainant nor her union representative responded to S1’s email to
request additional time. Complainant does not dispute this. Complainant claims that she
requested additional time to prepare at the meeting. S1 noted that the purpose of these weekly
PAP meetings was to discuss Complainant’s performance from the prior week and thus,
Complainant did not need to prepare. Furthermore, S1 stated that the majority of the comments
S1 made during the meetings were already given to her in the prior week. In addition, S1
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indicated that on October 17, 2012, S1 provided Complainant her requested productivity index
for August and September 2012. Complainant does not dispute this.

Regarding claim (8), Complainant claimed that S1 exhibited a pattern of assigning cases to her
late on Thursdays prior to her flexi place days of Friday and Monday. S1 acknowledged that she
routinely assigned cases to her Attorney Advisors, including Complainant, and Senior Attorneys,
on Thursdays because most of them worked at home on Fridays, as Complainant did, and she
wanted to make sure they had enough cases in their workload listings to take home for flexi
place and work on upon their return to the office. S1 denied manipulating case assignment as
alleged. Upon review, we find that Complainant failed to show that she was treated less
favorably than a similarly situated employee under similar circumstances.

S1 stated that on October 4, 2012, when she assigned two cases to Complainant, she did not
know Complainant already left the office for the day. Complainant did not claim that S1
assigned her cases late on any other day other than this one single incident; nor did she claim that
this assignment affected her performance adversely.

Regarding claim (9), S1 indicated that she sent the report at issue via email a day before for the
following Wednesday PAP meeting. Furthermore, stated S1, under the terms of the PAP, S1 was
not required to provide the subject reports to Complainant prior to the meeting; rather S1 did it as
a courtesy. Complainant does not dispute this. S1 indicated that over the 90-day PAP, she
prepared approximately eleven weekly progress reports.

Regarding claim (10), Complainant indicated that on June 29, 2012, she made her request for a
hardship transfer from her West Los Angeles office to the Downtown Los Angeles office due to
a hostile work environment. Complainant claims that she mailed her written request to the
Agency’s Human Resources office in Richmond, California, which was received on July 2,
2012. As of October 10, 2012, Complainant had not received a response.

The Regional Management Officer indicated that his office previously received Complainant’s
initial hardship transfer request to be transferred from the West Los Angeles office to the
Downtown Los Angeles office on August 26, 2011. The Officer stated that to be considered a
valid hardship transfer, an employee needed to have a situation that was beyond their control,
required a permanent change in duty station outside the commuting area, and would cause a
serious personal or financial hardship. And, indicated the Officer, the staffing needs of the
gaining office were also considered. The Agency noted that the Downtown Los Angeles office
was located merely 14 miles away from the West Los Angeles office.

The Officer indicated that on September 30, 2011, he denied Complainant’s August 26, 2011
transfer request since she failed to meet the requisite criteria. Complainant does not dispute this.
The Officer stated that his office again received Complainant’s second hardship request at issue
in July 2012. However, the Officer found that since the second request was based on the same
circumstances as the August 2011 request of which Complainant failed to meet the requisite
criteria of the hardship transfer and because there had been no changes since her 2011 request,
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the second request did not warrant a new decision. The Officer indicated that at the relevant
time, he did not know Complainant’s race, religion, age, or her prior EEO activity.

S1 indicated that Complainant never informed her of any hardship request or her desire to leave
the office. Upon review, we find that Complainant failed to show that she was treated less
favorably than a similarly situated employee under similar circumstances concerning the
hardship transfer request at issue.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Furthermore, we note that Complainant has not claimed that she was denied a
reasonable accommodation or that she was required to perform her duties beyond her medical
restrictions. Complainant acknowledged that she could perform her job duties without any
accommodations.

We also find that Complainant failed to show that she was treated less favorably than a similarly
situated employee under similar circumstances or that the Agency’s reasons for its actions were a
pretext for discrimination. It appears that Complainant was not happy with S1’s management
style and S1’s higher expectations from her attorneys than her predecessor. Complainant agreed
that she “was not getting along with [S1].” The Agency noted that when S1 was an Attorney
Advisor, prior to her promotion to the position as Complainant’s supervisor, she was one of the
most productive attorneys, writing an average of one decision a day. After a review of the
record, we find that Complainant has failed to show that the Agency’s actions were motivated by
discrimination as she alleged. Regarding her claim of harassment, the AJ found and we agree
that Complainant failed to establish the severity of the conduct in question or that it was related
to any protected basis of discrimination.

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the Agency’s statement of
undisputed facts. Upon review, the AJ found and we agree that there is no evidence that the
Agency’s articulated reasons were untrue or otherwise indicative of pretext. Based on the
foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by
discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.
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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. 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.
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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

January 26, 2018
Date