Tommy R.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 13, 2019

2019000467 (E.E.O.C. Aug. 13, 2019)

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

Tommy R.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 2019000467

Agency No. DEN180194SSA

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 9, 2018
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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Claims Specialist, GS-9, at the Agency’s
Colorado Field Office in Denver, Colorado.

On March 1, 2018, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him based on national origin (Hispanic), sex (male), age (YOB:
1971), and in reprisal for prior protected EEO activity when, on November 9, 2017, Complainant
did not receive a within-grade promotion to the position of Claims Specialist, GS 11.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment

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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Opportunity Commission Administrative Judge (AJ). Complainant did not respond to the
notice.2

On October 9, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed. On appeal, Complainant argues, through his representative, that the
Agency did not address all claims listed in his formal complaint. Specifically, Complainant
states that his formal complaint includes a claim that he was subjected to disparate treatment
with respect to work assignments when he was restricted from completing more than 10 cases
per week. Complainant further states that the bottom of page 5 of his formal complaint has the
words “back” with an arrow indicating that his complaint continued onto the next page.
However, the additional page is missing from the record. Complainant states that he is unable to
locate a complete copy of the formal complaint and he does not recall whether he identified other
allegations of discrimination and retaliation on the page of his formal complaint that is missing
from the record. Complainant requests that the Commission vacate the Agency’s final decision
and remand the outstanding claims back to the Agency for a supplemental investigation.

ANALYSIS AND FINDINGS

Preliminary Matter – Claims at Issue

As an initial matter, we address Complainant’s argument that the Agency failed to investigate all
claims provided in Complainant’s formal complaint. We acknowledge that the word “back” with
an associated arrow located on the bottom of page 5 of Complainant’s complaint suggests that
Complainant submitted additional information that was omitted from the record. We note that
Complainant, on appeal, is uncertain whether he included additional claims on the omitted page.
However, the record indicates that the Agency sent Complainant a March 24, 2018 letter
identifying the claims that were accepted for investigation. The letter provided Complainant the
opportunity to amend his formal complaint “at any time prior to the conclusion of the
investigation to include claims that are like or related to the accepted claims.” Complainant
could have amended his complaint to include any claims originally included but omitted from his
formal complaint, and he could have also submitted a claim regarding management official’s
decision to limit him to submitting 10 cases per week. There is no indication that Complainant
submitted a request to amend the formal complaint. Therefore, we deny Complainant’s request
to vacate the Agency’s final decision and we deny Complainant’s request for a supplemental
investigation.

2 The Agency stated that the report of investigation (ROI), dated June 26, 2018, was delivered to
Complainant’s home on July 16, 2018, but was returned to the Agency as undeliverable on July
19, 2018. The Agency further stated that it re-mailed the ROI on July 23, 2018 and the ROI was
delivered to Complainant’s home on July 30, 2018.
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Disparate Treatment

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 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, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center 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. 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).

Agency management articulated legitimate, nondiscriminatory reasons for not promoting
Complainant to the position of Claims Specialist, GS-11. The Acting District Manager (“M1”)
testified that she is Complainant’s third line supervisor. M1 stated that Complainant was not
promoted to the GS-11 level because he had not demonstrated that he reached the journeyman
level. M1 explained that Complainant transferred from the North Dakota Office to the Colorado
District Office in June 2016, and Complainant was informed, before his transfer, that he would
not be promoted to the GS-11 level. M1 further explained that Complainant had not
demonstrated the “ability to perform [his] duties independently and with proficiency” and “was
unable to show such proficiency at the time he arrived at the Denver Office.” Consequently, M1
stated that she provided Complainant with “additional assistance and mentoring to assist him in
his duties.”

M1 further stated that she participated in a detail from April 2017 through August 2017 and was
not in the Denver Office during this period. However, M1 explained that when she returned to
the Denver Office in August 2017, Complainant had started the Title II refresher training aimed
at assisting him in increasing his proficiency in his Claims Representative duties. M1 stated that
Complainant completed the training at the end of the first week of November 2017 and
Complainant was required to enter a total of 250 cases into the ePAD system before he could be
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removed from the review.3 M1 explained that Complainant objected to the number of cases he
needed to submit and claimed that, in accordance with his agreement with his former Manager
(“M2”), he was only required to submit 30 additional cases for a promotion to the GS-11 level
because he had already submitted 220 cases into the system after completing the training course
the first time. M1 stated that she informed Complainant that she was “unaware” of such
agreement, and M1 explained that “the number [of cases] is only changed if the employee
undergoes a shorter training and not the full training class that Complainant had undergone.”

M1 acknowledged that Complainant had received a rating of 3 on his 2017 performance plan.
However, M1 explained that the evaluation covered a review of Complainant’s work from
October 2016 through September 2017. Consequently, M1 stated that the 2017 performance
plan did not cover work Complainant submitted after he completed the Title II refresher training
course.

M2 testified that he was unaware of how the decision to approve or deny Complainant’s in grade
promotion was made. M2 further stated that she was not in Complainant’s chain of command
and did not work in the same office.

The record includes a copy of a June 10, 2016 notice from the North Dakota District Manager
informing Complainant that his career ladder promotion to the GS-11 level was being withheld
because he had not met all of the nine job functions defined in his career ladder promotion plan.

A copy of Complainant’s SF-50 indicates that Complainant’s transfer from the North Dakota
Office to the Colorado Office was effective June 12, 2016.

The record includes a copy of Complainant’s performance plan, signed on October 31, 2017
reflecting that he received a rating of 3.

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on
Complainant’s national origin, sex, age, and in reprisal for prior protected EEO activity.

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

3 M1 explained that mentors and managers reviewed cases the employees submitted into the
ePAD system to provide feedback to ensure that employees can perform their duties
independently. M1 further stated that Complainant’s cases needed to be reviewed given that he
was repeating the Title II training.
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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. 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.
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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

August 13, 2019
Date