Karin C.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 15, 2019

0120182595 (E.E.O.C. Nov. 15, 2019)

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

Karin C.,1
Complainant,

v.

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

Appeal No. 0120182595

Agency No. SF170916SSA

DECISION

On July 21, 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
June 25, 2018 final decision concerning her equal employment opportunity (EEO) 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a District Manager,
GS-13, at the West Fresno Field Office (WFFO), in Fresno, California. On November 8, 2017,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (Asian), disability (hearing loss), and reprisal (prior protected EEO activity) when,
on July 31, 2017, management issued Complainant a notice to suspend.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge.
When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

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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The decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination or reprisal as alleged.

FACTUAL BACKGROUND2

On or around March 2, 2017, Complainant’s subordinate (C1) who worked in the WFFO,
purportedly yelled at Complainant. Complainant notified her first-line supervisor (S1) that she
planned on issuing a written reprimand to C1. S1 responded that they needed to “take a step back”
and that S1 would come to Complainant’s office the next day to discuss the matter. Shortly after
this conversation, another employee contacted S1 and informed her that Complainant was
soliciting statements from her employees over instant message about the incident with C1. When
S1 questioned Complainant, she admitted to requesting statements from her employees via instant
message (IM). S1 instructed Complainant that she was not to seek statements from her staff
members regarding the incident and again stated that she would be at the office the next day to
discuss the matter. The next day, on March 3, 2017, Complainant held a “stand up” staff meeting
with her employees and requested that they provide statements regarding the incident with C1. C1
was not present at the meeting, but could hear the meeting from her desk, stood up, and left for
home in tears. Afterwards, S1 came to the office, but Complainant did not tell her about the
meeting that had occurred earlier that day. When S1 found out about the verbal request for
statements approximately two weeks after meeting with Complainant, she asked Complainant
about it, and Complainant admitted she had held the meeting and asked for the statements. S1 also
asserted that Complainant acknowledged she made a mistake by not telling S1 about the “stand
up” meeting and realized she should not have requested the statements.

Thereafter, S1 issued a proposal to suspend Complainant for five days in June 2017 for
Complainant’s failure to follow instructions.3 After reviewing the proposal and Complainant’s
reply, Complainant’s second-line supervisor (S2) made the ultimate decision to suspend
Complainant for five days. S2 explained that she sustained the proposal because Complainant had
engaged in serious misconduct, “particular for someone in management with several years of
experience.” S2 also noted that Complainant did not create a safe working environment and did
not respect C1’s right to privacy. S2 affirmed that her decision to suspend was solely based on
Complainant’s misconduct.

Complainant claimed that she did not recall S1 telling her not to collect statements. In the
alternative, Complainant stated that she may have misunderstood the statements due to her hearing
loss or because S1 was vague and indirect.

2 The facts set forth herein are undisputed unless stated otherwise.

3 S1 stated that at the time of the proposal to suspend Complainant, she was unaware of prior
problems between Complainant and C1.
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S1 asserted that given Complainant’s management position, her failure to follow instructions was
serious enough to warrant a suspension, noting that the Labor and Employee Relations Division
(LERD) suggested that a suspension of seven to 10 days would be appropriate. Regarding
Complainant’s contention that she may not have heard S1 due to her hearing impairment, S1
contended that she asked Complainant if she had questions about her instructions, and
Complainant did not ask for clarification. Moreover, S1 stated that Complainant did not tell her
about the “stand up” meeting or that C1 overheard the discussion at the meeting and left the
workplace crying. S1 further cited Complainant’s concealment of the meeting as evidence that
Complainant knew she had done something against S1’s instructions.

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, 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 must satisfy a three-part evidentiary scheme to prevail on a claim of disparate
treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First,
Complainant must establish a prima facie case by demonstrating that she was subjected to an
adverse employment action under circumstances that would support an inference of
discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S.
567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory,
reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third,
should the Agency carry its burden, Complainant must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the Agency were not its true
reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in
protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was
subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity
and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the
protected activity within such a time and in such manner that a retaliatory motive may be inferred.
See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005); Dominica H. v.
Dep't of Health and Human Servs., EEOC No. 0120150971 (Nov. 22, 2017).

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To establish a claim of disability discrimination, as a threshold matter, Complainant must first
establish that she is a “qualified individual with a disability” within the meaning of the
Rehabilitation Act. The Act's implementing regulation defines “individual with a disability” as a
person who has a physical or mental impairment which substantially limits one or more of the
person's major life activities, has a record of such an impairment, or is regarded as having such an
impairment. Major life activities include: self-care, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning and working. 29 C.F.R. §§ 1614.203(a)(1), (3). The
regulation defines a “qualified individual with a disability” as a person “who, with or without
reasonable accommodation, can perform the essential functions of the position in question without
endangering the health and safety of the individual or others ....” 29 C.F.R. § 1614.203(a)(6).
Turner v. Dep’t of the Air Force, EEOC Appeal No. 01950170 (May 9, 1996).

We assume for the purposes of this decision that Complainant established a prima facie case of
discrimination and retaliation as alleged. The record also establishes that the Agency articulated
a legitimate, non-discriminatory reason for proposing that Complainant be suspended for five days.
Specifically, S1 maintains that despite Complainant’s claim that she did not understand her
instructions, Complainant admitted IM’ing some employees immediately after her telephone
conversation with S1 on May 3, 2017. This prompted S1 to telephone her again and reiterate that
Complainant was to take no actions until S1’s planned arrival on the following day. S1 further
asserts that after being told twice to take no further action on the matter until she discussed it with
S1, Complainant again solicited employee statements before S1 arrived, and then concealed that
she had done so. S1 cites Complainant’s third request for statements and her concealment of that
request as indications that Complainant knowingly acted contrary to S1’s instructions. In addition,
S1 maintains that proposing a five-day suspension was appropriate for a manager at Complainant’s
level due to her responsibility to model appropriate response to supervisory instructions.

To prove pretext, Complainant must prove, by a preponderance of the evidence, that the agency’s
reasons for its actions are so implausible (e.g. full of such “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions) as to be unworthy of belief. See Opare-Addo v.
U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007). Complainant failed to satisfy
this burden and does not even identify evidence of pretext regarding her suspension. Rather,
Complainant argues that the decision to suspend her was unfair and extreme. However, the record
is devoid of evidence to corroborate Complainant’s assertions.4 Moreover, S1 and S2 provided a
legitimate and reasonable basis for the suspension decision. Complainant’s mere disagreement
with the Agency’s decision is not evidence of pretext. See Barry v. Mabus, EEOC Appeal No.
0120113682 (Sep. 19, 2013).

At all times, the ultimate burden of persuasion remains with Complainant to demonstrate by a
preponderance of the evidence that the Agency’s reason was not the true reason, and that the
Agency acted on the basis of discriminatory or retaliatory animus.

4 The record does not contain similarly situated comparison employees treated more favorably
under similar conditions.

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Complainant has not done so here. Accordingly, the Commission finds that Complainant has not
demonstrated that she was subjected to discrimination or reprisal as alleged.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that the
preponderance of the evidence does not support discrimination or retaliation as alleged by
Complainant.

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).
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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 (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

November 15, 2019
Date