Kerrie F.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0120170692 (E.E.O.C. Oct. 18, 2018)

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

Kerrie F.,1
Complainant,

v.

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

Appeal No. 0120170692

Agency No. ATL160085SSA

DECISION

On December 1, 2016, 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
October 28, 2016, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision (FAD).

ISSUES PRESENTED

Whether the FAD properly found that Complainant failed to establish that she was subjected to
disparate treatment and discriminatory harassment based on reprisal for prior EEO activity when:
(1) beginning on September 28, 2015, she began to be treated differently than her peers with
respect to terms of working conditions, assignment of duties, supervision, and performance
appraisals; (2) on October 29, 2015, she received a poor evaluation in all categories of her FY15
PACS appraisal; and (3) on January 26, 2016, her manager took away her budget responsibilities,
hired two employees for Budget Analyst positions without involving Complainant, and then
reassigned the budget workload to Complainant.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Regional Director of
Operations and Administration at the Agency’s Atlanta Regional Office of the Office of Disability
Adjudication and Review facility in Atlanta, Georgia. The Agency’s FAD clearly articulates the
facts of record, and the instant decision incorporates them by reference. On February 22, 2016,
Complainant filed an EEO complaint alleging that the Agency discriminated against her based on
reprisal for engaging in prior protected EEO activity under Title VII as articulated in the statement
of Issues Presented above.

At the conclusion of 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 Equal Employment
Opportunity Commission 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). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant requests that the Commission overturn the Agency’s FAD because the
record is clear that she was subjected to disparate treatment and discriminatory harassment in
reprisal for prior EEO activity. Complainant contends that the Agency’s stated reasons are mere
pretext for discrimination. In addition to overturning the FAD and other make-whole relief,
Complainant requests that the negative information contained in her file be removed; that her
ratings be raised to a 5; that the sick leave she used as a result of treatment be restored; and that
she be reassigned to a non-supervisory GS-14 position in her current area of expertise.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII cases alleging discrimination is a three-step process.

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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor
Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must
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. Next, the Agency must
articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must
prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the Agency
was a pretext for discrimination. Id. at 256.

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
reprisal for prior EEO activity, we find that the Agency articulated a legitimate, non-discriminatory
reasons for its alleged discriminatory actions. The record is void of any evidence that
Complainant’s performance rating, change in duties, or any other Agency actions were motivated
by any discriminatory animus. The Commission has long held that an Agency has broad discretion
to set policies and carry out personnel decisions, and should not be second-guessed by the
reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906
(January 16, 1997).

The record reflects that Complaint’s supervisor (S1) prepared a draft rating to shape her
discussions with employees regarding their performance during the review meeting. S1 stated that
Complainant’s overall rating was 4.3 and “successful” this year as a result of a reduction in two
areas, Interpersonal Skills and Management Performance. S1 indicated that she rated Complainant
as a “3” in the Interpersonal Skills category because amongst other things she was hesitant to
communicate with other managers, did not communicate effectively with her supervisory chain,
was not cooperative or resourceful, and did not offer thoughtful or respectful feedback. Regarding
her “3” rating in Management Performance, S1 stated that Complainant “made errors in the
budget.”

With respect to the shift in budget duties assigned to Complainant, S1 stated that the duties were
initially taken from under Complainant’s supervision when the employee responsible for the
function filed a complaint against her and was therefore moved out of Complainant’s supervisory
chain. Upon hiring of an additional colleague for Complainant, the duties were placed under his
purview, until an additional staffing change occurred at which time the duties were reassigned to
Complainant. While this process could have been organized better, there is nothing in the record
to establish that the assignments or reassignment was made in response to Complainant’s prior
EEO activity. The Office appeared to have undergone a reorganization, and the duties of several
managers were changed.

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Complainant provided no documentary or testimonial evidence to establish pretext. She offered
nothing more than her own assertions, and the testimony of a colleague who was not a party to the
events. Upon review of the record, we find that there is no persuasive evidence in the record to
support Complainant’s contentions.

Harassment/Hostile Work Environment

With respect to Complainant’s contention that he was subjected to a hostile work environment due
to the actions by Agency management, we find that under the standards set forth in Harris v.
Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of hostile work environment
must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination
that Complainant failed to establish that any of the actions taken by the Agency were motivated
by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000).
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the FAD properly found that Complainant failed to
demonstrate she was subject to discrimination as alleged; the Agency’s final decision is
AFFIRMED.
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.
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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.
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

October 18, 2018
Date