[Redacted], Leona L., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Feb 24, 2022

Appeal No. 2021002831 (E.E.O.C. Feb. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leona L.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002831 Hearing No. 520202000531X Agency No. NY200094SSA DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s March 19, 2021 Final Order concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Claim Specialist Trainee (“CST”), GS-7, at the SSA District Office in Dunkirk, New York. On December 16, 2019, Complainant filed a formal EEO complaint alleging discrimination by the Agency on the basis of age (42) when, on September 16, 2019, she was terminated during her probationary period.2 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. 2 Complainant also alleged discrimination based on her marital and parental status, which are not protected categories under federal EEO statutes. 2021002831 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, and, over Complainant’s objection, the AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (“EEO-MD-110”), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. The Commission has long held that where a complainant is a probationary employee, they are subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Alex L. v. Soc. Sec. Admin., EEOC Appeal No. 0120172851 (Jun. 28, 2018); Kaftanic v. United States Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)); see also 5 CFR § 315.804(a). Such discretionary reasons often include a complainant’s inability to demonstrate improvement after receiving training, or other indicia of a lack of “suitability.” See, e.g. Harmon v. Dep’t of Commerce, EEOC Appeal No. 01A33155 (Sept. 11, 2003) (poor performance and lack of improvements after receiving additional training sufficient legitimate nondiscriminatory reason for termination during probationary period), Tiford v. Dep’t Homeland Sec., Appeal No. 0120071252 (May 14, 2007) (reasoning that the probationary period is a test of actual 2021002831 3 performance on the job gives the supervisor an opportunity to observe the employee’s demonstrated capacity for the position). In the instant complaint, Complainant and three coworkers (“C1, C2, and C3”) were all hired as CSTs in September 2018. They all reported to the District Manager, GS-13 (“DM”) (age 41) and were all assigned to the same Claims Technical Expert, GS-12, as a mentor (“M1”) (age 35). DM initiated and was the deciding management official for Complainant’s termination during her probationary period. Complainant and C3, both in their early 40s, recount that DM and M1 appeared to favor C1 and C2, who were in their early 30s. In April 2019, Complainant and her coworkers transitioned from classroom training to conducting interviews and processing claims via the Agency’s electronic proficiency application database (“ePad”). Complainant’s percentage of correct claims entries reflected no improvement for the four full months she was using ePad. Complainant acknowledges in prehearing documents that she was aware that a critical element of her position, “Ability to Learn” would be assessed, at least in part, based on data generated through ePad. However, she alleges that ePad data was not objective, as DM and M1 provided more training and direct support to C1 and C2. The AJ determined that the Agency established a legitimate, nondiscriminatory reason for the alleged discriminatory action, namely, poor work performance and an inability to take constructive criticism to improve her work quality. The AJ reasoned that the record reflected, that over a period of months, Complainant’s ePad scores were “significantly lower” than both the national average and that of her two younger coworkers C1 and C2. Although Complainant’s scores were similar to those of C3, the AJ explained that this could not give rise to an inference of age discrimination because C3 and Complainant were both over 40 and around the same age. Moreover, the record reflected that unlike Complainant, C3’s ePad scores improved over time. The AJ thoroughly addressed Complainant’s argument that the Agency’s proffered ePad data was misleading because it would award 0% for claims even if there was only one minor error. Among other things, the AJ aptly noted that “[w]hile Complainant may not agree with the way in which her work was reviewed, or the metrics considered in evaluating her performance, there is no evidence that other CSTs’ work was evaluated differently than hers.” With respect to the alleged deficiencies in ePad training, the AJ determined that the Agency offered “numerous documents substantiating the efforts made to work with Complainant to improve her work.” In contrast, the AJ explained that Complainant’s evidence, consisting of personal notes were insufficient to overcome summary judgment because they consisted of “Complainant’s own speculation and interpretation of events,” amounting to “self-serving testimony.” On appeal, Complainant asserts that the Agency’s “evidence” also amounts to “self-serving testimony” and should not be credited, as it is based on ePad data, and therefore is not objective. For instance, she alleges that she had less opportunities to question Management on the application of the ePad system in training compared with the younger trainees. She further alleges, without support, that prior to submitting claims in ePad, the younger trainees received assistance verbally, via email, messenger, and “in other ways,” so their claims did not reflect errors. 2021002831 4 Complainant concedes that she still makes mistakes, but explains that they are not repeated mistakes, as characterized by DM. However, she does not address her complete lack of improvement or M1’s repeated observation that she lacked the thoroughness expected of and exhibited by the other CSTs. Likewise, Complainant offers vague statements about the errors cited occurred much earlier, yet emails from M1, a month prior to Complainant’s termination reveal her concerns that Complainant is not conducting interviews in the manner she was trained, and not following her instructions to enter information into ePad as she conducts the interview to prevent submission of incomplete claims. A de novo review of Complainant’s testimony and notes reveals additional factors that she alleges contributed to her termination, which are not protected under EEO statutes, such as child care obligations. We note that C3 testified that Complainant’s “kids are older than the [other CSTs], so they were involved in more activities. When she had issues related to their activities or illnesses, [DM] seemed to get upset and would speak to her in a harsh tone.” Complainant alleges that DM was more critical of her than the other CSTs and describes a disconnect in her communications with DM, such as an incident where DM misinterpreted her request for another reviewer to assist her with ePad entries as “inappropriate” and an “insult” to S1. While sometimes unfair, employment decisions based on personal favoritism are not a violation of the ADEA so long as they are not also premised on age. McClinton v. Dep’t of the Air Force, EEOC Request No. 05921032 (May 6, 1993). While Complainant believed DM did not like her because of her age, the record is devoid of supporting evidence. A complainant's belief, no matter how sincere, is insufficient to establish that the agency's proffered explanation is a pretext for unlawful discrimination. See Cedrick S. v. Dep’t of the Treas., EEOC Appeal No. 2020001495 (Sept. 17, 2020) (the complainant’s self-serving statement that it was “common knowledge” that the agency engaged in discriminatory practices was insufficient to prove that the Agency’s stated reasons for his non-selection were pretextual), see also Harriet J. v. United States Postal Serv., EEOC Appeal No. 2020001702 (Nov. 3, 2020), Kabir v. United States Postal Serv., EEOC Appeal No. 0120080058 (Mar. 31, 2010). Moreover, Complainant has not offered any additional non-comparator evidence from which, if otherwise unexplained, an inference of discrimination could be drawn. See Saenz v. Dep't of the Navy, EEOC Request No. 05950927 (Jan. 9, 1998) citing Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). Significantly, Complainant does not point to any inconsistencies in the record that could establish a question of material fact. DM and M1 have the most firsthand knowledge of Complainant’s abilities, and offered consistent firsthand testimony supported by email communications over a period of months. Despite C3’s allegation of favoritism toward younger employees, she also testifies that she witnessed Complainant receive one on one assistance at her desk, and C1, C2, and C3 all testified that they never saw DM or M1 refuse to assist Complainant. All of the witnesses explain that M1 and DM would answer questions, but they did not check their ePad entries before submitting them, noting that that would defeat the purpose of ePad. With respect to the only potential discrepancy, an April performance appraisal that indicates that Complainant’s performance was satisfactory, DM explains that the it was issued prior to Complainant receiving ePad assignments. 2021002831 5 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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. 2021002831 6 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. 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 24, 2022 Date