Jeremy H.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 20, 2019

0120181965 (E.E.O.C. Sep. 20, 2019)

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

Jeremy H.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120181965

Hearing No. 531-2016-00212X

Agency No. OCO-15-0795-SSA

DECISION

On May 25, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
April 27, 2018, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether Complainant has shown by a preponderance of the evidence that
the Agency subjected him to discrimination based on his protected class.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Legal Administrative
Specialist/Benefit Authorizer at the Agency’s Office of Central Operations, Office of Disability,
Learning Center, Security West in Woodlawn, Maryland.

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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On September 24, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of age (51) when on July 6, 2015, he was terminated during
his probationary period.

The investigative record reflects the following pertinent matters relating to the subject claims.

Complainant was terminated during his probationary period, and his July 6, 2015 termination
notice cited his unacceptable performance as the reason. Complainant was informed that he did
not pass enough assessments to retain his position. Complainant argued that some of the
assessments were incorrectly scored, but acknowledged that they were later updated to reflect the
accurate score. Complainant also asserted that while he was on notice of his poor performance two
months prior to receiving the termination notice, there was nothing done to assist him.
Complainant asserted that he was assigned three or four mentors, but none of them properly
mentored him. Complainant believed his age was the factor for his termination. Complainant noted
that he was often referred to as “Mr. [Complainant’s last name]”, while younger colleagues were
known on first name bases. Additionally, Complainant noted that a Birthday Club was established
at work to celebrate employee birthdays.

The Assistant Module Manager (under 40) stated that Complainant took 14 assessments and that
his overall average on the assessments was under 60 percent. The assessments documented crucial
knowledge and skills from the lessons that were taught, and Complainant only passed three
assessments. The Assistant Module Manager acknowledged that Complainant was briefly without
a mentor during his probationary phase, but always informed Complainant that he could seek out
assistance from any manager or mentor. He claimed that he generally addressed Complainant by
his first name.

The Module Manager (over 40) confirmed that it was her decision to terminate Complainant. She
stated that trainees are required to demonstrate satisfactory performance and conduct in the
Learning Center and the Module. She maintained that prior to Complainant reporting to the
Module, she met with him to discuss his low performance and lack of progress. The Module
Manager noted that at that initial meeting, she informed Complainant that he was at risk of
termination due to poor performance. She explained that Complainant had difficulty analyzing
cases and did not have a good understanding of policy and procedure. Additionally, he had
difficultly navigating the Benefits Authorizer systems, and did not ask questions or request
assistance when needed. She noted his average score for the open book assessments was under 60
percent. The Module Manager stated that in the same pool, two employees (both under 40) were
also terminated for poor performance based on excessive absenteeism. She also noted that she
addressed Complainant by his first name.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing but subsequently withdrew his request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
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decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

CONTENTIONS ON APPEAL

Neither Complainant nor the Agency provided an appellate statement.

ANALYSIS AND FINDINGS

As this is an appeal from a 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).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires
that the Commission examine the record without regard to the factual and legal determinations of
the previous decision maker,” and that EEOC “review the documents, statements, and testimony
of record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

Disparate Treatment

Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment
is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973). For a complainant 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, n. 13; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to
persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry
can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that the agency’s actions were
motivated by discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).

Analysis

Regarding Complainant’s disparate treatment claims, if we assume, arguendo, that Complainant
established a prima facie case of discrimination, the Agency has articulated legitimate,
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nondiscriminatory reasons for its actions. Specifically, Complainant failed to score a passing rate
on a variety of assessments that are crucial for his position. The record demonstrated that
Complainant repeatedly scored under a passing rate in a variety of assessments. We note that some
of Complainant’s scores were inaccurately scored, but even when the scores were rectified,
Complainant still did not have enough passing scores to maintain his position. Additionally,
Complainant argued below that the Agency failed him by not providing him with consistent
mentorship. While Complainant’s access to consistent mentorship may have had gaps, this would
not have significantly altered Complainant’s ability to score passing rates on the assessments.
Furthermore, when gaps in mentorship were present, the Agency noted that Complainant was
always able to access and request assistance from any manager or other mentors.

Agencies generally have broad discretion to carry out personnel decisions and exercise business
judgment. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). Regarding
these adverse actions, the Agency has articulated legitimate, nondiscriminatory reasons for its
actions which Complainant has failed to show were pretext for discrimination. Pretext inquiry is
not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of
Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether
the agency made the best, or even a sound, business decision; it is whether the real reason is
discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext for
intentional discrimination is insufficient because subjective belief, however genuine, does not
constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were
motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion
remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was
motivated by prohibited discrimination. Complainant has failed in this regard.

Based on the record, the decision to terminate Complainant’s employment was based on legitimate,
nondiscriminatory reasons, which Complainant failed to demonstrate were pretext for
discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant as alleged.

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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

September 20, 2019
Date