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

Equal Employment Opportunity Commission

Jul 27, 2021

Appeal No. 2020001033 (E.E.O.C. Jul. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marleen G.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020001033 Hearing No. 530-2016-00207X Agency No. PHI-15-0648-SSA DECISION On November 4, 2019, 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, 2019 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Attorney Advisor, GS-13, in the Office of Disability Adjudication and Review at the Agency’s Seven Fields Office in Pennsylvania. On August 31, 2015, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African American) and reprisal for prior protected EEO activity (2011 pay disparity EEO complaint) when: (1) on April 17, 2015, the Agency issued Complainant a lower-than-expected 2015 mid-year performance evaluation, with negative comments and (2) between June 17, 2015 and August 29, 2015, management subjected 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. 2020001033 2 Complainant to a hostile work environment, including failure to provide Complainant performance feedback after her mid-year and the Chief Administrative Law Judge’s (ALJ1) comment that, as the matter was closed, Complainant should not take further action because “no one wanted to see this blow up in [Complainant’s] face.” The Agency accepted and then investigated Complainant's claims. During the EEO investigation, Complainant stated that she and the Supervisory Attorney Advisor (S1) spoke about her mid-term evaluation briefly and positively, and it was not until the next day that she noticed negative comments about her interpersonal skills on the evaluation. Complainant stated, in October 2015, the Agency issued her a less than “Outstanding” rating on her annual performance evaluation and it contained negative comments. Complainant stated that the October 2015 rating was undeserved, and she requested feedback after the mid-year to address any concerns before the annual rating but S1 and the Hearing Office Director failed to provide it. Complainant stated that she is the only African American Attorney Advisor in the office and management has denied all of her requests for clarification/information on her performance. Complainant’s first level supervisor, S1, stated that she was not aware of Complainant’s prior EEO activity at the time of the mid-year review. As to (1), S1 stated that she began supervising Complainant in December 2014, so she had been her supervisor for about five months when they met for her mid-year review in April 2015. S1 stated that she read the review ratings to Complainant and she did not have any questions or comments. S1 stated that she told Complainant “she was doing a good job overall, as she is an excellent writer.” S1 stated she suggested Complainant engage colleagues and management in legal and work-related discussions and be mindful of being “approachable” to maintain positive relationships. S1 noted that ratings are not assigned to the mid-year reviews and that comments and recommendations are given to the rated employee to assist with striving for the highest rating for the end-of-the- year evaluation. S1 stated that Complainant likes to be communicated with via email solely and she informed her that will not always be the case. Regarding (2), S1 stated in the process of responding to Complainant’s concerns, Complainant called her a “liar” several times and was disrespectful. S1 stated employee relations recommended an in-person meeting, which was held April 27, 2015. S1 stated that Complainant did not stay for the entirety of the meeting and left before clarification could be provided. S1 stated, on April 28, 2015, she gave Complainant a memorandum summarizing what she planned to discuss at the April 27 meeting. Further, S1 stated that Complainant attends mandatory meetings but rarely attends staff meetings or participates/shares knowledge when she does. ALJ1 stated that Complainant is “an excellent legal decision writer” and S1’s comments were suggestions to strengthen Complainant’s performance. He stated that Complainant was not satisfied with S1’s written response or attempts at a constructive conversation. ALJ1 stated that he did not discriminate or retaliate against Complainant. He stated that he spoke to Complainant to assure her that no one was trying to harm her and tell her to stop calling her supervisor a “liar,” to avoid potential discipline. 2020001033 3 Following the EEO investigation, the Agency informed Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final decision by the Agency. Complainant requested a hearing. On May 10, 2017, the assigned AJ issued an Order dismissing the complaint pursuant to 29 C.F.R. §§ 1614.107(a)(1) & (a)(5) for failure to state a claim. On June 12, 2017, the Agency adopted the AJ's procedural dismissal. Subsequently, Complainant filed an appeal with this Commission, which was docketed as EEOC Appeal No. 0120172600. On November 28, 2017, in the decision for 0120172600, EEOC reversed the final agency decision and remanded the underlying complaint to the Agency for further processing, including forwarding to the appropriate EEOC District Office for a hearing. After further processing, Complainant requested a hearing again, but subsequently withdrew her request. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant stated that S1’s negative comments lacked support or prior discussion and S1 failed to provide clarification on her comments. 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”). A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 2020001033 4 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, non-discriminatory 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on race or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency stated that Complainant is an “excellent writer” and, during an April 2015 mid-year review (which is not actually a rating), Complainant’s Supervisor, S1, made several suggestions about Complainant engaging more in the office with colleagues and management. Complainant received the suggestions as negative and, on April 27, 2015, S1 tried to meet with her to discuss but Complainant left the meeting early. Further, the Agency stated, the next day, S1 sent Complainant a summary to clarify her comments. The Agency stated, during the clarification process, Complainant was not receptive to the explanations given and called S1 a “liar” several times. The Agency stated that a Chief Administrative Law Judge, ALJ1, told Complainant to stop calling her supervisor a liar or risk progressive discipline. The Agency stated that it did not discriminate against Complainant and no one was trying to harm her. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. 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. 2020001033 5 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. 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. 2020001033 6 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 July 27, 2021 Date