Leanne H., Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Feb 25, 2016

0120143114 (E.E.O.C. Feb. 25, 2016)

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

Leanne H.,
Complainant,

v.

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

Appeal No. 0120143114

Hearing No. 410-2014-00088X

Agency No. ATL-12-0894-SSA

DECISION

Complainant filed an appeal from the Agency’s August 4, 2014 final order concerning her 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 order.

BACKGROUND

Complainant worked as a Claims Examiner at the Agency’s District Office in Savannah, Georgia
until she retired in January 2013. On November 13, 2012, she filed an EEO complaint in which
she alleged that her Operations Supervisor, her first-line supervisor, (S1) discriminated against
her on the bases of age (55) and reprisal for (prior protected EEO activity) in connection with the
following incidents:

1. On September 4, 2012, S1 denied Complainant a performance award;

2. On September 18, 2012, S1 issued Complainant a formal written reprimand;

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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3. On September 27, 2012, S1 harassed Complainant by sitting down in her cubicle for
two hours and reviewing her work with her; and

4. On October 22, 2012, S1 gave Complainant an annual performance rating of
“successful” for Fiscal Year 2012.

Complainant averred that when she asked S1 why she did not receive an award, S1 had told her
that it was because of her attitude, her inability to get along with her fellow employees, and her
failure to keep up with her work. Investigative Exhibit (IE) 5, p. 2. S1 averred that there were
two types of awards and that Complainant did not qualify for either type. S1 testified that
Complainant was not eligible for a recognition-of-contribution award because her performance
element rating average needed to be at least 4.0 but was only at 3.0. She further stated that to be
eligible for an exemplary-contribution-or-service award, Complainant would have had to
perform an extraordinary service or act in connection with her official duties or demonstrate
exemplary individual contributions to group achievement, and that Complainant had done
neither. IE 6, p. 2; IE 10, p. 1. S1’s affidavit testimony had been corroborated by the District
Manager, who was Complainant’s third-line supervisor (S3). IE 7, p. 2.

In her official letter of reprimand dated September 18, 2012, S1cited as reasons for the
reprimand Complainant’s failure to follow a proper management directive and for her
disrespectful tone and manner when dealing with management. S1 noted that Complainant’s
work had been consistently submitted late and contained numerous errors. S1 further noted that
when she reminded Complainant of completion dates, Complainant had responded with
argumentative emails rather than completing the assignments on time. S1 further noted that
despite her directives, Complainant continued to miss due dates on a regular basis. IE 6, p. 4; IE
7, pp. 3-4; IE 9, pp. 1-9. Complainant herself acknowledged that these were the reasons that S1
had given her for issuing the reprimand. IE 5, p. 3.

Complainant averred that on September 27, 2012, S1 sat with her in her cubicle for
approximately two hours reviewing her work in a manner that had caused her to feel
embarrassed, humiliated, and targeted. IE 5, pp. 4-5. S1 responded that Complainant had an
extensive number of overdue cases under the category entitled, “continuing disability reviews,”
and that she had merely assisted Complainant in finishing these cases so that they could be
issued as soon as possible. IE 6, p. 5.

Finally, Complainant averred that on October 22, 2012, she became aware that S1 had given her
an overall performance rating of “successful” for fiscal year 2012. She further averred that S1
had commented that she did not know what she was doing, that she needed constant assistance
with the system, and constantly had to be told what to do. IE 5, p. 6. Both S1 and S3 responded
that given Complainant’s troubling performance during fiscal year 2012, the rating of successful
that she had received was, in their words, “generous.” IE 6, p. 6; IE 7, p. 7.

At the conclusion of the investigation, the Agency notified Complainant of her right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).

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Complainant timely requested a hearing and on July 3, 2014, the AJ convened a hearing and
issued a bench decision. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

STANDARD OF REVIEW

On Page (4) of his decision, the AJ noted that Complainant was the only witness who appeared
and gave testimony during the hearing. No transcript of this proceeding exists. Nevertheless,
pursuant to 29 C.F.R. § 1614.405(a), any post-hearing factual findings by the AJ that are based
on Complainant’s hearing testimony will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor
Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or
not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456
U.S. 273, 293 (1982). The AJ’s findings of fact based on evidence other than Complainant’s
hearing testimony, including those findings of fact based on the affidavits of the other witnesses
and exhibits in the investigative report, are subject to a de novo standard of review. The AJ's
conclusions of law are likewise subject to a de novo standard of review, whether or not a hearing
was held.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s actions involving awards, appraisals,
disciplinary actions or supervisory oversight unless there is evidence of a discriminatory
motivation on the part of the officials responsible for those actions. See Texas Department of
Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on her
claims of hostile environment and disparate treatment, Complainant would have to prove, by a
preponderance of the evidence, that S1 was motivated by unlawful considerations of her age and
previous EEO activity in connection with the incidents described in her complaint. See Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Harris v. Forklift Systems, Inc.,
510 U.S. 17, 22 (1993).

Complainant can meet her burden of proof by demonstrating that the articulated reasons for the
actions at issue are pretextual, i.e., not the real reason but rather a cover for age discrimination or
reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S.
at 253. Evidence of pretext includes discriminatory statements or past personal treatment
attributable to S1, comparative or statistical data showing differences in treatment across age-
related lines, unequal application of Agency policy, deviations from standard procedures without
explanation or justification, or inadequately explained inconsistencies in the evidentiary record.
Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12,
2015). If Complainant fails to establish the existence of discriminatory intent on the part of any
of the responding management officials, no further inquiry would be necessary as to whether the
incidents complained of are severe or pervasive to rise to the level of harassment or constitute

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separate acts of discrimination under disparate treatment theory. Nicki D. v. Department of
Veterans Affairs, EEOC Appeal No. 0120133247 (October 15, 2015).

The laws the Commission enforces cannot prevent an employer from making decisions with
which its employees disagree unless those decisions are rooted in a statutorily proscribed
motivation. And on this crucial issue, Complainant did not provide evidence of any of the
indicators of pretext described above. She has not submitted any sworn statements from other
witnesses or documents that contradict the explanation provided by S1, or which call S1’s
veracity into question. Moreover, with respect to the incident involving S1 sitting with
Complainant for two hours going over his work, a single work-related instruction by definition is
neither severe nor pervasive enough to rise to the level of harassment. See Complainant v.
United States Postal Service, EEOC Appeal No. 0120131010 (April 15, 2015); Complainant v.
Department of Agriculture, EEOC Appeal No. 0120132282 (June 13, 2014). Ultimately, we
agree with the AJ that Complainant has not sustained her burden of proof with respect to her
disparate treatment and harassment claims.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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.

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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

February 25, 2016
Date