[Redacted], Eleni M. 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Dec 31, 2020

Appeal No. 2020004147 (E.E.O.C. Dec. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eleni M.1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020004147 Agency No. HQ-19-0695-SSA DECISION On July 10, 2020, 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 May 7, 2020, 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., 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 decision. ISSUE PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not subjected to disparate treatment based on age (75), sex (female), race (white), disability (mental), and retaliation (prior EEO activity) 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. 2020004147 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Expert, GS- 13 at the Agency’s Office of Analytics and Oversight, Division of Title XVI (Title 16) Quality and Service Evaluation in Baltimore, Maryland. On August 16, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (white), sex (female), disability (mental), age (75), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when: 1. on March 14, 2019, Complainant was reprimanded; and 2. on March 14, 2019, Complainant was removed from the “Steigerwald” Project (defined by the Agency as a high priority litigation support project for on-going litigation whose work was time sensitive with little to no margin for error).2 Procedural Dismissal for Failure to State a Claim - Claim 1 The Agency procedurally dismissed Claim 1 for failure to state a claim, explaining that Complainant initially alleged that she was unlawfully “reprimanded.” However, management denied issuing any reprimand and the record did not include any testimony or evidence substantiating Complainant’s claim that she was “reprimanded.” On the contrary, the Agency stated, Complainant asserted in her rebuttal that she did not intend the term “reprimand” to mean the Agency’s formal disciplinary process. Retaliation and Disability Record evidence reflected that Complainant initiated EEO contact in the instant complaint on April 26, 2019. Complainant stated that she filed approximately 15 EEO complaints from 1978 to the present. She also stated that in 1978, representatives from the Union and Federally Employed Women Program insisted that Complainant file a complaint; and that after a decision was issued in her favor, management conspired never to promote Complainant and to ruin her career. The record does not indicate that either of the two Responsible Management Officials (RMO1 and RMO2) named in the instant complaint was aware of Complainant’s prior EEO activity. Complainant stated that she has post-traumatic stress disorder (PTSD), which affects her nerves and her ability to drive; and which produces fear and anxiety, especially when Complainant is around people/coworkers. Complainant stated that she only leaves her house to see doctors, therapists, and to get necessities like food. She explained that driving is very stressful, so Complainant concentrates on getting home where she feels safe as soon as possible. 2 Complainant also raised marital status as a basis which the Agency dismissed, rightly noting that the Commission has no jurisdiction over claims on that basis. 2020004147 3 Complainant also asserted that she has a history of labyrinthitis, or inner ear vertigo, which causes dizziness and nausea. Complainant stated that she has asked for, and the Agency has provided, reasonable accommodations, including full-time telework. Claim 2 Complainant stated that RMO1 assigned her to the Steigerwald Project where Complainant voluntarily organized the mailbox, reviewed and commented on business and plan documents, formatted the caseload spreadsheet, and assigned cases until, Complainant alleged, RMO2 took Complainant off the team. Complainant explained that four unassigned cases could not be found in the mailbox and RMO2 went into a panic until the cases were found, which only took a few minutes. Complainant stated that no one could be blamed because the mailbox is accessed by everyone on the team and someone had obviously put the four unassigned cases in the assigned folder by mistake. Complainant indicated that she did not put the unassigned cases in the assigned folder because she added the Social Security Numbers (SSNs) of each assigned case to the subject line before filing them in the assigned folder, and when the unassigned cases were found in the assigned folder, the SSNs had not been added. Complainant stated that it was after the alleged incident that RMO2 told Complainant she was no longer on the team. Complainant stated that management did not give her any reason for removing her from the project. Complainant stated that RMO1 was not involved in the Steigerwald Project but that RMO1 was trying to use the alleged incident as a reason to reduce Complainant’s rating. Complainant asserted that taking her off the project was an example of the continuous retaliation that she has been subjected to because of her prior EEO activity. Complainant indicated that it was difficult to know what another person thought of her age, gender, race, and disability status, but Complainant was sure that her prior EEO activity affected everyone; and that this was something that Complainant had to deal with on a daily basis. Complainant also indicated that it may also be that RMO2 did not want Complainant on RMO2’s team because Complainant had worked in the division longer and had more study experience and education than RMO2. Complainant reiterated that management did not give Complainant any reason why she was removed from the project. Complainant indicated her suspicion that RMO2 felt intimidated by Complainant’s study experience, education, and other qualifications. RMO2 explained that the Steigerwald Project was a litigation support effort for a pending lawsuit that was being tried or will soon be tried. RMO2 stated that the project members were asked to conduct a review of certain cases and timely provide the information required to support the Agency’s position. RMO2 explained that Complainant was a part of the team and tasked with monitoring an electronic file and timely assigning cases to team members so that the cases could be timely reviewed. 2020004147 4 RMO2 stated that, on March 7, 2019, Complainant was asked to monitor the file and quickly assign all cases identified therein for review. RMO2 stated that, on March 12, 2019, it was discovered that certain cases placed in the electronic file on March 8, 2019, had not been assigned even though Complainant reported that the cases had been assigned. RMO2 stated that she held a discussion with Complainant on March 12, 2019; and that when Complainant’s error was brought to her attention, Complainant deflected responsibility asserting that the error was due to a lack of help (RMO2 noted that Complainant’s team member for the project effort was on leave); and then Complainant explained that she could not find the cases, and asked to be relieved of her monitoring duties. RMO2 asserted that when asked to review cases, Complainant expressed reluctance and then remarked that if RMO2 did not want her on the project, RMO2 should remove her. RMO2 stated that after thinking about the way Complainant refused to accept responsibilities for her actions, RMO2 spoke with her supervisor and advised that she would prefer that Complainant not work on the project. RMO2 asserted that Complainant’s removal had nothing to do with her protected classes. RMO2 stated that rather, Complainant was removed because she failed to effectively complete assignments and refused to accept responsibility for her non-performance. RMO1 provided supporting testimony, indicating that rather than risk failure on such important work, RMO2 proposed, and RMO1 concurred, that Complainant should be removed from the project because Complainant did not fully grasp how to complete the task or the importance of doing so; and because Complainant did not complete the work accurately or timely. The record includes emails between RMO2 and Complainant reflecting the time sensitivity of assignment; deficiencies in Complainant’s work; and Complainant’s response. In her rebuttal statement, Complainant challenged the veracity of management’s testimony, asserting that she did not volunteer for the project; and that RMO2’s behavior toward her was a product of the institutionalized retaliation that management fostered against Complainant for more than 30 years. Complainant also outlined her contributions to the project and denied blame for the cases that were allegedly lost. 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 (AJ). 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 Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL In her appeal statement, Complainant reiterates her retaliation claims, stating that management berated and dismissed her from a high-priority project based on false and illegitimate accusations that are a pretext for discrimination. 2020004147 5 Complainant also challenges the procedural dismissal, asserting that she clearly suffered and stated a claim of institutional retaliation discrimination after she was berated and dismissed from the agency’s all-hands-on deck Steigerwald Project to which her supervisor assigned her and which she strived to make successful. Complainant stated that the EEO Director tried to equate a “reprimand” with suffering “a direct and personal deprivation at the hands of an agency,” which, Complainant states, she was properly aggrieved. In its Opposition Appeal statement, the Agency reiterates its reason for dismissing Claim 1 stating that the evidence strongly disproved Complainant’s contentions and notes Complainant’s own admission that management did not “reprimand” her. The Agency also reiterates its reasons for removing Complainant from the project. Therefore, the Agency requests that the Commission affirm its FAD and dismiss Complainant’s appeal. 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 Procedural Dismissal for Failure to State a Claim - Claim 1 As a preliminary matter, we shall review the Agency’s dismissal of Claim 1 for failure to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Upon review of the record, we find that management denied issuing any reprimand. We also note that even Complainant had indicated that she did not intend the term “reprimand” to mean the Agency’s formal disciplinary process. As such, we find that Complainant was not an aggrieved employee and she did not suffer loss of an employment privilege. 2020004147 6 Furthermore, Complainant failed to present any direct testimony or evidence to substantiate her claim that she was reprimanded. See Complainant v. Dep’t of Def., EEOC Request No. 0520140462 (Sept. 25, 2015) (affirming decision that found the claim was “properly dismissed for failure to state a claim as no evidence was presented that any discipline was ever actually issued”). Complainant has also asserted in Claim 1 that she was subjected to unlawful retaliation for her prior protected activity when she was “reprimanded.” Regarding Complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U. S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. In the instant complaint, Complainant did not assert that she received a reprimand or that the alleged action is reasonably likely to deter Complainant or others from engaging in protected activity. We therefore affirm the Agency’s dismissal of Claim 1. Disparate Treatment - Claim 2 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2020004147 7 Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, age, sex, disability, and reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We also find no persuasive evidence of pretext. RMO2 explained, and RMO1 affirmed, that Complainant’s removal from the Steigerwald Project was based on the demands of the project which Complainant failed to meet; and Complainant’s refusal to accept responsibility for her non-performance when Complainant failed to effectively complete assignments. Complainant refuted management’s explanations, asserting that the alleged action was based on her protected classes; and motivated by discriminatory and retaliatory animus. However, Complainant presented no evidence to refute the emails between RMO2 and Complainant that corroborate management’s explanations, indicating that the alleged management action was based on a lawful personnel decision that was motivated by Complainant’s performance and attitude. 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 Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Complainant also failed to show pretext because she did not present any corroborating evidence or witness testimony to substantiate her contentions that management presented false and illegitimate accusations that are a pretext for discrimination. In January B. v. Dep’t of the Navy, EEOC Appeal No. 0120142872 (Dec. 18, 2015), the Commission stated that proof of pretext includes evidence of discriminatory statements or past personal treatment attributable to the named managers, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. We find no such proof in the instant complaint. Therefore, Complainant’s Claim 2 fails and we affirm the Agency’s decision finding no discrimination. CONCLUSION 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2020004147 8 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020004147 9 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 December 31, 2020 Date