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

Equal Employment Opportunity Commission

Apr 22, 2021

Appeal No. 2020000890 (E.E.O.C. Apr. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stephanie G.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020000890 Hearing No. N/A Agency No. DAL-18-0810-SSA DECISION On October 22, 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 September 18, 2019, final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Claims Specialist, Grade GS-11, at the Agency’s West Bank Field Office in New Orleans, Louisiana (NOWBFO). On August 29, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (Asian) and in reprisal for prior protected activity (pursuing EEO process in 2016) when: 1. On May 23, 2018, management informed Complainant she would be reassigned to the Disability Adjudication Unit (DAU) to perform Technical Expert (TE) duties; and 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 2020000890 2. On June 27, 2018, management denied her request to be reassigned back to her duties as a Claims Specialist (CS). After an investigation, the Agency provided Complainant with a copy of its report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant argues that she was rotated to a different sections, to train two newly-hired CS employees. Complainant stated that during her rotation, management assigned a similarly-situated African-American CS employee (CW) to handle her prior workload. According to Complainant, management formally assigned CW on a promotional detail as a TE in the grade of GS-12. Complainant maintained that, before and during her rotation, she had handled a TE workload and reviewed the work of current TEs, in addition to collateral duty as a Vietnamese translator. Complainant stated she was the only Asian in NOWBFO who was not a TE. Complainant asserted that her performances and expertise merited compensation as a Grade GS-12. Complainant accused the African American manager responsible for her rotation and CW’s detail acted out of racial favoritism toward CW. Finally, Complainant attacked the Agency’s statement that her rotation was part of broader reorganization. Complainant stated she was the only employee who had been rotated in a manner that increased her workload without increasing her compensation. 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). We reviewed, de novo, Complainant’s claims of racial and retaliation discrimination in accordance with the U.S. Supreme Court’s three-part analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish prima facie of disparate treatment, by presenting facts that, if unexplained, reasonably infer discrimination, i.e., that a prohibited consideration was a factor in the Agency’s employment action. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The second burden shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See 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 based on animus toward her EEO-protected characteristics. See St. Mary’s 3 2020000890 Honor Ctr. v. Hicks, 509 U.S. 502 (1993). At all times, Complainant bears the burden to show by preponderant evidence that the Agency’s reasons for the decisions at issue were pretexts to mask unlawful discriminatory motives. See U.S. Postal Svc. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Reeves v. Sanderson Plumb. Prod., Inc., 530 U.S. 133, 143 (2000). We presume, arguendo, that Complainant established a prima facie case. We now turn to the Agency’s articulated reasons for the assignment decisions in question. Complainant’s third-line supervisor, the District Manager, (African American, prior EEO activity unspecified stated that the NOWBFO had been underperforming. To increase efficiency, the District Manager had created specialized claims processing teams Intake, Disability Adjudication, and Post- Entitlement. Complainant was first assigned to Disability Adjudication. The District Manager testified that CW had been selected for the promotional detail, in the Intake Unit, because of her seniority and because CW expressed interest in mentoring new hires. Later, it was determined that the TE detail was not a good fit in the Intake Unit because it required public contact. As a result, CW completed the detail on the Disability Adjudication team. Complainant’s second-line supervisor, the Assistant District Manager (African American, prior activity unspecified) stated Complainant had not performed duties of a higher grade. Specifically, the Assistant District Manager stated that Complainant had only performed duties that were consistent with her position description as a CS. The Assistant District Manager testified that Complainant’s primary responsibility had been to process disability claims that had been returned from the State Disability Determination office. Complainant’s direct supervisor (Caucasian, EEO activity uncertain) corroborated both the District Manager and Assistant District Manager. The Operations Supervisor added that while detailed as a TE, CW had adjudicated more complex claims than did Complainant. According to the Operations Supervisor, he told Complainant that she would be temporarily rotated to the Intake Unit so that the TE detail could be moved to Disability Adjudication. The Operations Supervisor stated that at the end of the TE detail, Complainant went back to Disability Adjudication. The Agency articulated legitimate, non-discriminatory reasons for its actions. Complainant’s position conflicted with the reasoning articulated by the three responsible NOWBFO managers. Therefore, we conclude Complainant did not meet her burden because, at best, this evidence is equipoise. Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sep. 13, 2013) (credibility determinations were unavailable after a withdrawal of a request for a hearing such that complainant could not show that opposing witnesses had made false statements); Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that a coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an AJ did not make credibility determinations). We note that, in withdrawing her request for a hearing before an EEOC AJ, Complainant declined the opportunity to develop the record through discovery and to cross examine witnesses. Tommy O. v. U.S. Postal Serv., EEOC Appeal No. 0120152090 (June 8, 2017). 4 2020000890 Ultimately, Complainant did not present sufficient supporting evidence of her claim that Agency management’s justifications were pretextual. CONCLUSION Based on an exhaustive review of all evidence of record, and, after a careful review of Complainant’s assertions, we AFFIRM the Agency’s final decision because Complainant did not prove discrimination by a preponderance of evidence. 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). 5 2020000890 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. 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 April 22, 2021 Date