U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Casie S.,1
Complainant,
v.
Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120181906
Agency No. OCO-17-0579-SSA
DECISION
On May 16, 2018, 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 2, 2018, 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.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency subjected her to disparate
treatment and non-sexual harassment (hostile work environment) based on race and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Insurance
Specialist (Claims), GS-105-11, for the Workload Support Unit (WSU) at the Office of Earnings
and International Operations (OEIO) in Baltimore, Maryland.
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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On August 5, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American) and in reprisal for prior protected EEO activity
arising under Title VII when:
1. Between January 20, 2017 and May 17, 2017, she was subjected to non-sexual
harassment (hostile work environment) with regard to working conditions, including
denial of Leave Without Pay (LWOP), which resulted in Absence Without Leave
(AWOL), denial of overtime, reassignment, and assignment of duties;
2. On May 15, 2017, she was involuntarily reassigned;
3. On March 2, 2017, her computer privileges were revoked;
4. On March 2, 2017, she was placed on 100% work review;
5. On or about March 5, 2017, she was advised that she would be charged AWOL, rather
than LWOP; and
6. On or about March 5, 2017, her ability to work overtime was revoked.
The Agency accepted claims 1 through 6 for investigation. Thereafter, on September 11, 2017,
Complainant requested an amendment to her complaint to add an allegation of discrimination on
the bases of race and reprisal when:
7. On August 30, 2017, she was terminated from her Claims Specialist position.
On October 27, 2017, the Agency dismissed claim 7 pursuant to 29 C.F.R. § 1614.107(a)(4)
because Complainant had raised the same matter before the Merit Systems Protection Board
(MSPB). In dismissing the claim, the Agency emphasized that Complainant’s submission of her
MSPB appeal on September 10, 2017, which she submitted one day prior to mailing her request
to amend, constituted an election to pursue her termination claim through the non-EEO process,
and therefore, warranted dismissal of the claim.2
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 EEOC 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
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
2 Because Complainant has not challenged the propriety of the Agency’s decision to dismiss claim
7 pursuant to 29 C.F.R. § 1614.107(a)(4), we shall limit our review to claims 1 through 6.
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CONTENTIONS ON APPEAL
Neither Complainant nor the Agency submitted contentions on appeal.
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 (EEO MD-
110), at Chap. 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”).
To prevail in a disparate-treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must first establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at
802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Texas Dep't 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 pretextual. 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). Complainant can do this by showing
that the proffered explanations are unworthy of credence or that a discriminatory reason more
likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated
reasons are not credible permits, but does not compel, a finding of discrimination. Hicks, at 511.
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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
Assuming arguendo that Complainant established a prima facie case of discrimination on the
alleged bases of race and reprisal, we find that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions.
For claims 2 through 4, the Branch Manager of the Customer Service Branch averred that on March
1, 2017, management received information from the Agency’s Regional Federal Benefits Officer
in London, England that Complainant may have improperly and/or fraudulently initiated a
retirement benefits claim for an overseas claimant without that individual’s authorization. The
Branch Manager explained that management immediately initiated an investigation into
Complainant’s conduct and suspended Complainant’s systems access due to the seriousness of the
allegation and her history of adjudicating claims without following proper procedures.
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The Branch Manager averred that Complainant, in response, informed management that she felt
uncomfortable working at WSU if she could not perform her regular WSU duties, which required
systems access. The Branch Manager indicated that management then reassigned Complainant to
the Division of Earnings Records Operations (DERO) and placed Complainant on 100 percent
review because anytime an employee performs a different job duty, he or she is placed on 100
percent review.
Regarding claim 5, Complainant’s first-line supervisor cited Complainant’s failure to submit
appropriate documentation to support her request for LWOP as the reason for placing Complainant
on AWOL status. Complainant’s supervisor emphasized that management followed Agency
policies in charging Complainant as AWOL.
As for claim 6, Complainant’s first-line supervisor averred that Complainant could not work
overtime because the only available overtime work required systems access, which Complainant
did not have due to the pending investigation into her conduct.
After careful consideration of the evidence of record, we agree with the Agency that Complainant
has not presented any persuasive evidence to show that discrimination was the real reason for the
Agency’s actions. Regarding claims 2 through 4, though Complainant alleges that the Agency
subjected her to discrimination when management involuntarily reassigned her, revoked her
computer privileges, and placed her on 100% review, we find that the Agency had legitimate,
nondiscriminatory reasons for taking such actions in response to an allegation of potential fraud.3
The record reflects that management’s actions in response to the March 2017 allegation were
motivated, in part, by longstanding concerns regarding Complainant’s work, particularly her
adjudication of cases in quantities far in excess of her peers.4 Though we acknowledge that a
subsequent quality review of Complainant’s work found that she had a 99.96% accuracy rate, we
are unable attribute the increased scrutiny of her work to discrimination. We also find that
Complainant has not shown that she was treated less favorably than similarly situated individuals.
For claim 5, we agree with the Agency that Complainant failed to show that management’s
articulated explanation was a pretext for discrimination. Though Complainant alleged during the
EEO investigation that management should have placed her on administrative leave rather than
AWOL pending the outcome of the investigation into her conduct, we note that she has not named
any similarly situated comparators who were afforded administrative leave during an investigation
into their conduct.
3 There is no indication in the record that the Regional Federal Benefits Officer in London had any
knowledge of Complainant’s race and/or prior protected EEO activity when he reported
Complainant’s conduct.
4 For example, management began questioning the accuracy of Complainant’s work following her
December 13, 2016 email, in which Complainant stated that she had adjudicated 18 cases in 50
minutes.
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Moreover, while we also acknowledge Complainant’s contention that she submitted
documentation from her physician in support of her LWOP request, we note management
expressly denied receiving appropriate documentation from Complainant.5 Consequently, we find
that Complainant failed to show that she was subjected to discrimination as alleged.
Regarding claim 6, we find that Complainant failed to show that she was discriminatorily denied
overtime, as the record clearly shows that the only overtime work available required systems
access, which Complainant did not have due to the pending investigation into her conduct. The
preponderant evidence fails to show that Complainant was treated less favorably than similarly
situated individuals and/or disfavored because of her protected characteristics.
As for claim 1, we find that Complainant’s hostile work environment claim must fail due to our
determination that the actions taken by the Agency were not motivated by discriminatory animus.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant.
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
5 While the record contains an unsigned medical note dated May 17, 2017, there is no indication
that Complainant submitted appropriate documentation in support of her March 2017 request for
LWOP.
01201819066
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.
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
July 18, 2019
Date
