Lacey T.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 1, 2016

0120142752 (E.E.O.C. Sep. 1, 2016)

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

Lacey T.,1
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120142752

Agency No. CHI-13-0707-SSA

DECISION

On July 16, 2014, Complainant filed an appeal from the Agency’s June 17, 2014, 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. The Commission deems the appeal timely and accepts it for de
novo review. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

Complainant worked as a Claims Representative at the Agency’s Downtown Office in Dayton,
Ohio. On September 3, 2013, Complainant filed an EEO complaint in which she alleged that
her immediate supervisor, the Operations Supervisor (OS) discriminated against her on the
bases of race (African-American) and in reprisal for prior protected EEO activity by placing
her on a performance assistance plan (PAP) on July 8, 2013, and by initiating quality reviews
of her work on numerous occasions between July and September 2013. At the conclusion of
the ensuing investigation, the Agency notified Complainant of her right to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ). In
accordance with Complainant’s request, the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b) in which it concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

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 June 28, 2013, the OS issued Complainant a memorandum in which she informed
Complainant that she would be placing her on a PAP because of numerous documented errors
in the claims that Complainant was responsible for processing, including input, technical, and
dollar amount errors that had occurred between February and June of 2013. Investigative
Report Exhibit (IRE) 14, pp. 4-6; IRE 16. Complainant remained on the PAP until September
26, 2013, at which point she was informed that her performance had not improved and that she
was being placed on an Opportunity to Perform Successfully (OPS) plan. During the period of
the PAP, the OS had initiated over thirty quality reviews of claims that Complainant had
prepared, and had continued to find errors in Complainant’s review, analysis, and presentation
of those claims. IRE 7. Complainant declined to provide a rebuttal affidavit after having
reviewed the OS’s answers to the questions posed by the EEO investigator. IRE 8.

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”).

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on her claims of discrimination reprisal, Complainant
would have to prove, by a preponderance of the evidence, that the OS was motivated by
unlawful considerations of her race and prior EEO activity when she decided to put her on a
PAP and give her quality reviews thereafter. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000). She can do so by presenting evidence tending to show that
the reasons articulated by the OS for her actions were pretexts, i.e., not the real reason but
rather a cover for discrimination and reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S.
502, 515 (1993).

Here, the OS’s assessment of Complainant’s performance deficiencies exhibited between July
and September of 2013, which the OS gave in her affidavit as the reason for placing
Complainant on the PAP and subsequently initiating quality reviews during the duration of the
PAP, had been extensively corroborated by detailed, contemporaneously prepared memoranda.
When asked by the investigator why she believed that the PAP was discriminatory, she
responded that her performance was no worse than that of her coworkers. IRE 6, p. 3. When
asked by the investigator why she believed that the quality reviews were based on her race and
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previous EEO activity, she replied that she was, “not sure.” ORE 6, p. 4. She has not
presented any sworn statements from other witnesses or documents which contradict the
explanation offered by the OS or that call the OS’s veracity into question. Indeed, she does not
even attempt to rebut the OS’s affidavit responses. We therefore agree with the Agency that
Complainant has not sustained her burden to establish the existence of a racially-based or
retaliatory motive on the part of the OS in connection with the incidents described in the instant
complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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
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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

September 1, 2016
Date