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

Equal Employment Opportunity Commission

Mar 13, 2018

0120160284 (E.E.O.C. Mar. 13, 2018)

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

Natalie F.,1
Complainant,

v.

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

Appeal No. 0120160284

Hearing No. 530-2013-00157X

Agency No. PHI-11-0472-SSA

DECISION

On October 23, 2015, 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 3, 2015, final order 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and 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 Authorizer, GS-0105-11, at the Agency’s Mid-Atlantic Center
in Philadelphia, Pennsylvania. On June 2, 2011, Complainant filed an EEO complaint in which
she alleged that the Assistant Module Manager for Module 4, her first-line supervisor (S1), and
the Module Manager for Module 4, her second-line supervisor (S2), subjected her to a hostile
work environment between July 2010 and February 2011 because of her race (Black), age (53),
color (Black), disability (stress-related anxiety and depression), and previous EEO activity. In
particular, Complainant 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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1. From July 2010 until February 3, 2011, S1 and S2 had placed her on a Performance
Assistance (PA) plan, placed her on an Opportunity to Perform Successfully (OPS) plan,
and subjected her to an ongoing 100% performance review which culminated in her
receiving an unsuccessful rating on her OPS from S1 on February 3, 2011; and

2. On February 20, 2011, she was demoted from a GS-0105-11 Social Insurance Specialist
Claims Authorizer position to a GS-0998-07 Claims Examiner Earnings Reviewer
position and reassigned to a new section on a different floor.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. The AJ dismissed the hearing request,
finding that the complaint was a mixed-case complaint and on June 28, 2012, the Agency issued
a final decision which gave Complainant appeal rights to the Merit Systems Protection Board
(MSPB).

Although the record does not contain information on the results of the MSPB process,
Complainant eventually was able to again request a hearing before an EEOC AJ.2 The AJ
assigned to the case granted the Agency’s July 21, 2013, motion for a decision without a hearing,
and issued a decision without a hearing on August 21, 2015. 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.

Complainant averred that on February 3, 2011, S1 had informed her that she had received a
rating of unsuccessful on her OPS plan. She claimed that the extensive scrutiny that S1 and S2
had given her work was clearly harassment. She maintained that her work was unfairly
evaluated and that she should have received a rating of successful. In addition, she averred that
the entire performance review process was designed to have her fail. Exhibit (Ex.) 6, pp. 6-8.
S1 and S2 averred that they began to notice problems with Complainant’s performance in
January 2010. S1 stated that she tried to assist Complainant informally throughout the Winter
and Spring of 2010, but that she was not showing improvement. In particular, her performance
was deficient in two of her four critical job elements: demonstrates job knowledge and achieves
results. On July 13, 2010, S1 placed Complainant on the PA plan and on August 30, 2010, S1
placed her on the OPS plan, after Complainant failed to raise her performance level while under
the PA plan. She remained under the OPS plan until February 3, 2011. During the seven months
between July 2010 and February 2011, her performance was under 100% review. S1 directed
technical experts to provide Complainant with guidance and feedback, which comprised the
review. Despite the extensive assistance she was provided with, Complainant had not raised her
performance to the fully successful level in either of these elements. Ex. 7, pp. 4-8; Ex. 8, pp. 4-

2 We presume that the MSPB dismissed Complainant’s MSPB appeal for lack of jurisdiction and
“unmixed” the case. However as the record does not include the MSPB decision we are unable
to verify this assumption. The Agency is reminded to include the complete record when
submitting files to the Commission in conjunction with an appeal.
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5; Ex. 9, pp. 3-7; Ex. 10, pp. 4-5; Ex. 11, pp. 4-5; Ex. 16; Ex. 18c; Ex 19a-d; Ex. 20a-d; Ex. 21a-
d.

Complainant averred that on February 20, 2011, she was given the choice of either taking a
downgrade to the GS-7 position or being terminated. She acknowledged that the stated reason
for taking the downgrade was that she did not achieve a performance rating of fully successful
while under the OPS plan, although she maintained that her performance was no worse than that
of her coworkers. Ex. 6, pp. 6-10. S1, S2, and the Operations Manager who served as
Complainant’s third-line supervisor all averred that she was given the downgrade based on her
failure to achieve successful performance under the OPS. The memorandum documenting the
downgrade indicated that it was voluntary and that Complainant had signed the agreement to
take the down grade in lieu of being terminated. Ex. 7, p. 9; Ex. 8, p. 9; Ex. 11, p. 7; Ex, 22a-b.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case.

To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected classes; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the
conditions of [Complainant’s] employment and create an abusive working environment.” Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

To ultimately prevail on her harassment claim, Complainant must show that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive.
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Complainant must also prove that the incidents occurred because of a protected basis. Since
Complainant has also alleged reprisal, she must prove that the actions of S1 and S2 were harmful
to the point that they could dissuade a reasonable person from making or supporting a charge of
discrimination. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). See
also EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No.
015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if Complainant satisfies her burden of proof
with respect to all of these elements, motive and either hostility or chilling effect, will the
question of Agency liability for retaliatory harassment present itself.

Complainant established the first element of a claim of harassment by virtue of her race, color,
disability, age, and previous EEO activity. We would also agree that S1’s and S2’s conduct in
the incidents identified by Complainant is unwelcome from her own subjective perspective,
which is enough to satisfy the second element. See Floyd L. v. Dept. of Veterans Affairs, EEOC
Appeal No. 0120150737 (Apr. 27, 2017).

In order to establish the third element of a claim of discriminatory harassment, Complainant
must show that in taking the actions that comprise her harassment claim, S1 or S2 relied on
considerations of her race, color, disability, age, or prior EEO activity that are expressly
proscribed by Title VII, the ADEA and the Rehabilitation Act. See Aldaberto P. v. Dept. of
Veterans Affairs, EEOC Appeal No. 0120142387 (Mar. 29, 2016). When asked by the EEO
investigator why she believed that her race, age, color, disability, and prior EEO activity were
factors in her OPS rating and subsequent downgrade, she replied that S2 made comments about
her hair, her jewelry and the fact that she drove a Mercedes Benz, and that the Agency had a
culture that valued younger employees. Ex, 6, pp. 9-11. In addition to her own assertions,
Complainant presented the affidavit of a Benefits Authorizer who worked with her. This
individual averred that although S2 was often unfair in her treatment of employees, and had
taken a dislike to Complainant personally, she did not believe that it was due to discrimination or
prejudice on S2’s part. The Benefits Authorizer stated that she had no direct information as to
whether S2 or any other management official treated Complainant differently or harassed her
because of her race, color, age, mental disability, or prior EEO activity. Ex. 13, pp. 4-6.

Beyond her own assertions and the affidavit of the Benefits Authorizer, Complainant has not
presented affidavits, declarations, or unsworn statements from witnesses other than herself or
documents that expose any weaknesses, inconsistencies, or contradictions in S1’s and S2’s
explanations for the various incidents to such an extent that a reasonable fact finder could
rationally find those explanations unworthy of credence. See Opare-Addo v. U.S. Postal Service,
EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC
Request No. 0520080211 (May 30, 2008). The AJ thus correctly determined that no genuine
issue of material fact exists with respect to the motivations of S1 and S2 in placing
Complainant’s work performance under 100% review, placing her on a PA plan and then an OSP
plan, and transferring her to a lower-graded position.

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We note that in addition to harassment, the AJ analyzed Complainant’s claim in terms of
disparate treatment. Because Complainant has not established a connection between her
protected status and the incidents comprising her claim, no further inquiry is necessary as to
whether those incidents rise to the level of harassment or otherwise constitute separate acts of
discrimination under disparate treatment theory. See Tynisha H. v. Dept. of State, EEOC Appeal
No. 0120141395 (March 17, 2017).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s finding that Complainant did not establish that she
was discriminated against as alleged.

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.
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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

March 13, 2018
Date