U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Roman B.,1
Complainant,
v.
Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120180929
EEOC Hearing No. 531-2016-00342X
Agency No. PHI150411SSA
DECISION
On January 19, 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
December 26, 2017, final decision concerning his 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision finding no discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-12 Operations
Supervisor (OS) at the Agency’s Field Office in Towson, Maryland.2 He was the only male OS
in the Towson office. Complainant’s first-line supervisor was a GS-13 Assistant District Director
(RMO1) who had been in her position since 2013. His second-line supervisor was a GS-14 District
Director (RMO2). The Area Director (AD) was Complainant’s third-line supervisor.
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 became a Technical Expert in the first week of May 2015.
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Prior to the instant complaint, Complainant stated that he never filed a formal complaint of
discrimination. However, he recalled that in 2013 or 2014, a coworker asked him to be a witness
in a complaint, but no one ever called him. Complainant stated that, when he informed RMOl and
RMO2 that he was going to file the instant EEO complaint in January 2015, their harassment and
criticism of him intensified substantially.
On April 6, 2015, Complainant filed an EEO complaint alleging that the Agency subjected him to
discrimination and nonsexual harassment on the bases of race (Caucasian), sex (male), and age
(52), and reprisal for prior protected EEO activity between 2014 and February 1, 2016, in terms of
assignment of work duties, reprimands, awards, training, working conditions, false accusations,
and a lowered performance appraisal. On June 22, 2017, Complainant amended his complaint to
add disability (physical) as a basis.3
After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). In September 2016, Complainant requested a hearing but
subsequently withdrew his request in October 2017. Consequently, 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 him to discrimination as alleged.
As a matter of background, the record reveals that the Agency’s management uses the Performance
Assessment and Communication System (PACS) to rate employees’ individual performance and
provide a summary appraisal rating. The PACS system includes formal procedures for marginal
or failing performance, known as a Performance Assistance (PA) period and an Opportunity to
Perform Successfully (OPS). If an employee’s performance does not improve following the
PA/OPS, the Agency can take a performance-based adverse action.
Complainant states that the Agency began to harass him when he met with RMO1 on January 15,
2015, to address his July 2014 mid-year PACS. At this meeting, Complainant said that RMO1 told
him that he needed to improve, and identified areas he needed to address. According to RMO1’s
statement in the record, RMO1 explained that Complainant was not performing as expected
because he was not communicating effectively with management and his employees; he had not
given his new hire trainees their initial PACS plans in a timely manner; he was still struggling with
the Supplemental Security Income (Title XVI) workloads; and instead of managing his employees’
performance, he was processing certain of their workloads for them.
Complainant said he disagreed with her assessment, but in the appraisal, he admitted to engaging
in certain behaviors.
3 In his June 2017 deposition, Complainant stated that he had arm and shoulder problems and that
he felt discriminated against based on disability because he could not stand long. He explained that
it was a condition he had since he was in high school and he can only stand for a few minutes and
then has to sit down.
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For example, RMO1 stated that that there appears to be a lack of communication between them
and that Complainant still bypasses her to talk to RMO2. Complainant responded that “he
sometimes bypasses his direct supervisor because he [is] used to dealing with [RMO2].”
Additionally, when RMO1 noted that some of Complainant’s staff had complained about his lack
of or inappropriate communication with them, Complainant replied that “his communication is
only a problem with a select few” because “these people just don’t want me as their supervisor.”
He also asserted that he believed his language and tone were appropriate compared to other
members in management. RMO1 reminded Complainant that he had been instructed not to clear
or process claims unless asked to do so by management but that he occasionally continued to
process work. Complainant, however, responded that “he only clears claims that are of a critical
nature” as well as those directed by management. She observed that Complainant did not always
timely respond to “public inquiries or congressional and OIG FITS” without reminder emails to
which Complainant asserted that “he processes most of his workloads without reminders.” RMO1
stated that Complainant is on the Continuous Quality (CQ) review cadre and had been reminded
of such by the AD because the deadline for completion was approaching to which Complainant
replied that he does not believe he is responsible for CQ reviews since he was no longer the T2
OS. Finally, Complainant admitted to sitting on a desk and eating sunflower seeds while
conducting training but asserted that it was “a relaxed training session” during which the majority
of the time he stood or sat in a chair while giving instruction.
Subsequently, Complainant submitted a written statement on January 26, 2015, denying all of
RMO1’s criticisms. For example, Complainant claimed that, contrary to RMO1’s observation, he
did not have "considerable PACS training" or "was provided with sufficient direction" regarding
the system. He averred that the only PACS training he had was Video on Demand (VOD), and that
VOD training was very broad and did not expand into New Hires and Transfer employees.
Complainant added that when he asked RMO1 questions, she did not know the answers and gave
him bad advice, causing problems. He also contended that his PACS reviews were timely, and
any delays were because RMO1 and RMO2 wanted to review all of the PACS he completed.
Complainant stated that RMO1 and RMO2 would hold on to the PACS for a couple of days or
weeks and they would sometimes make changes, which caused some of the PACS to be late.
Complainant also maintained that his PACS reviews were conducted on time, unlike those by
RMO1, who was permitted to complete her PACs late without consequences. Complainant further
noted that he learned that other female OSs who worked at the Agency’s offices in Rossville and
Abingdon were late getting their PACS done, but RMO2 did not take any action regarding the
lateness.
RMO1 denied giving incorrect dates or bad advice to Complainant, and she maintains that if
Complainant needed PACS assistance, there was someone in the area office that was
Complainant's go-to person for assistance, and that person had walked Complainant through the
steps. Regarding Complainant's statement that he had "minimal" PACS training, RMO2 added
that when Complainant was under her supervision approximately four years ago, she had sent him
to Philadelphia for PACS training for one week, which gave Complainant all of the training
necessary. She noted that, as a supervisor for four or five years, Complainant had previously
prepared PACS reviews and that he never mentioned that he did not know how to do them.
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As for RMO1’s criticisms of Complainant’s work performance and communication deficiencies,
the record reveals that Complainant admitted in his July 3, 2014 response to the appraisal that “he
sometimes by passes his direct supervisor because he used to dealing with [higher management]”;
“that his communication is only a problem with a select few [who] . . . just don't want him as their
supervisor;” and that “[h]e does remember having his legs crossed . . . on a desk.”
The Agency noted that RMO2 countered that there was not a need for Complainant to rely on
RMO1 for advice regarding PACS for the three new hires because the office has a Program
Operations Manual System, and when a person logged into the website it told you what to do.
RMO2 stated that the PACS website was detailed, simplistic and user-friendly, and had a
calculator that told you when to conduct different discussions. She also recalled that Complainant
had prepared the PACS and placed them in a folder, but is unaware of him being given incorrect
information by RMO1. RMO2 observed that even if RMO1 had given him incorrect dates,
Complainant could have gone to the website and checked the dates himself.
Complainant stated that the harassment of him continued on February 24, 2015, when RMO1
conducted another PACS meeting with Complainant in her office. RMO1 stated that she informed
Complainant he had missed the due date for the FY2015 mid-year performance discussions with
his three new employees and about his continued lack of communication with the management
team. RMO1 further noted that Complainant was affecting the morale of the office when he
insisted on sharing managerial decisions and conversations concerning his job performance and
rating, which he had been previously told was inappropriate. According to the record, Complainant
did not offer any immediate rebuttal to this appraisal but he eventually filed a statement disagreeing
with RMO1’s criticisms.
Complainant argued that the Agency harassed him on March 4, 2015, when RMO1 issued a
counseling memo about the February meeting. The record reflects that RMO1 stated that before
the February meeting was over, Complainant took a phone call and left her office without
explanation. RMO1 considered Complainant’s behavior to be discourteous and disrespectful, and
issued a counseling memo on March 4, 2015, to this effect. Complainant denied engaging in
discourteous or disrespectful behavior. During the investigation, Complainant averred that he had
informed RMO1 that he was expecting a call from his doctor when the meeting began and informed
her that it was his doctor when the phone rang. However, in his subsequent deposition,
Complainant admitted that he left the meeting when he received the call because his PACS review
was devastating, his heart was acting up, and he was under doctor’s care. He said that, as he walked
away, RMO1 asked him, “are we done?” to which he replied, “Yes, we’re done.” He explained
that he did not wish to discuss the matter any further because he worked very hard at managing his
workloads, was in constant communication with his employees to ensure they were meeting their
goals, and had to field contradictory directions from RMO1 and RMO2. Complainant stated that
the information he provided to management showed that the section was functioning properly but
management would say that it was not.
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Thereafter, Complainant said RMO1 and RMO2 inundated him with harassing e-mails, which the
managers stated provided Complainant with consistent guidance and constructive criticism about
his job duties and performance. In addition to denying that Complainant's statement that she
constantly harassed and ridiculed him, RMO1 maintained that she only attempted to provide
feedback that would improve Complainant’s performance but that he did not like taking directions
from her. On this issue, RMO2 further clarified that when RMO1 called Complainant to her office
to discuss his performance, it was only after RMO2 had talked with RMO1 about Complainant
and that RMO2 believed Complainant did not like RMO1 because RMO1 was Black.
According to the record, Complainant continued to have performance issues as a supervisor
regarding his ability to provide performance feedback and manage workloads. Consequently,
documents reflect that the AD and RMO2 considered reassigning Complainant to the GS-12
position of Management Support Specialist (MSS) because it did not require the issuance and
supervision of PACS plans and appraisals. When they pursued this action, Employee
Relations/Labor Relations (ER/LR) decided to put him on a “PA/OPS,” instead. The record
indicates that Complainant was upset about the proposed reassignment because he felt he was
eligible for a promotion. He contended that his managers continued their harassment through May
2015, when he accepted a voluntary reassignment to the Technical Expert position in the Owings
Mills office in the first week of May 2015, which removed him from their chain of command.
Complainant contended that his age was a factor in the harassment since he does not move as fast
or think as quickly as younger employees, and believes RMO1 and RMO2 thought negatively of
him. Complainant said that his sex was a factor since 90% of the Operations Supervisors within
the region were females and he was the only male OS at the Towson office. He averred that his
race was a factor because he observed that: RMO1 tended to mingle primarily with the Black
employees more than she did with the White employees in the office; she tended to be harder on
the White staff members than she was on the Black staff members; and she showed a great deal of
favoritism towards Black employees. He further noted that after RMO1 came aboard, a group of
Black employees met and discussed how to get rid of having Complainant as their supervisor.
Having not been invited to the meeting along with the other White employees, Complainant stated
that he learned about the meeting when he noticed the gathering.
Complainant acknowledged that the managers may not have been aware that he had agreed to be
a witness in an EEO case, but he insisted that retaliation was a factor because his managers were
aware that he was pursuing an EEO complaint against them. He also stated that he believed
management used his problems with PACS to justify lowering his performance rating.
The Agency issued a decision finding no discrimination. With respect to his disparate treatment
claim, the Agency found that Complainant established some prongs of the prima facie case as to
race, sex, and age because Complainant is a White male who was over 40 years old. The Agency
found that Complainant failed to prove that management’s articulate reasons for its actions were a
pretext for discrimination. The Agency noted that Complainant admitted to some of the
deficiencies addressed in the PACS meetings, advisory emails, and counseling memo.
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As to his claim of reprisal, the Agency found that Complainant could not establish a prima facie
case because both managers denied knowing about any prior EEO activity and Complainant
admitted that his managers were probably unaware that he had agreed to be a witness in a
coworker’s EEO case. The Agency also found that, even though management confirmed that they
became aware of Complainant’s instant complaint on March 19, 2015, when they were contacted
by the EEO counselor, the reprisal claim must fail because the alleged retaliatory or harassing
incidents on January, February and March 2015, occurred prior to the management’s awareness of
his EEO complaint. The Agency noted that it was not persuaded by Complainant’s argument that
he informed RMO1 and RMO2 that he planned to file an EEO complaint before he contacted the
EEO counselor in February 2015, because Complainant offered no corroborative evidence of its
occurrence and the managers denied having engaged in such conversation.
Finally, the Agency found that Complainant could not establish that he was subject to unlawful
harassment rather than normal supervisory engagement generally incurred by an employee with
performance incompetencies. This appeal followed.
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”).
Although the Agency failed to include the basis of disability in its final decision, we find that their
analysis and decision effectively found no discrimination on all claims and alleged bases.
Furthermore, our analysis considers the claim of disability and we find no discrimination has been
proven for the basis of disability or any other alleged bases.
We find that even if Complainant established a prima facie case of discrimination on all bases, he
failed to establish that the managers’ reasons for meeting with him to discuss his performance,
issuing him a counseling memo, or lowering his performance rating were pretextual. We reject
Complainant’s assertion that his lower performance rating was race-motivated because he received
better ratings when his supervisor (then RMO2) was Caucasian. Any evidence of Complainant’s
prior good performance is insufficient to show pretext in light of his more recent performance
problems. The record shows a documented trail of both RMO1 and RMO2’s attempts to address
and correct Complainant’s performance issues. In that Complainant asserts that RMO1’s race
motivated this discourse, we note that RMO2, who is Caucasian like Complainant and the former
supervisor he credits with giving him better performance ratings, stated that she was in complete
agreement with RMO1’s assessment of Complainant’s then performance.
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Further, RMO2 stated in the record that RMO1 only called Complainant to PACS meetings at
RMO2’s direction and it was RMO2 who initiated his removal from the OS position. We are also
unpersuaded by Complainant’s contention that RMO1’s race had anything to do with the African
American employees who decided to meet and allegedly discuss his removal as their supervisor.
Complainant admitted that he made RMO1 aware of the meeting, that she had no idea what the
meeting was about, and that the employees disbanded after RMO1 informed them that such
gatherings required prior managerial permission to occur. Complainant also admits that he only
assumed the Black employees wanted him removed as their supervisor because he is White. Such
speculation and innuendos do not sustain a discrimination claim.
Next, while Complainant may have been the only male in the Towson office, he presented no
evidence to support a finding that his sex was a factor in management’s decision to address his
performance deficiencies. Although Complainant claims that female employees were also late in
their PACS without being held accountable, Complainant did not name these persons or provide
evidence substantiating this assertion. Furthermore, even if these female employees were also late
in their PACS, Complainant has not shown that they had the myriad of other performance
deficiencies that Complainant had demonstrated. Thus, we do not find these employees are
similarly situated to Complainant.
We find nothing in the record to support Complainant’s contention that his age was a factor.
Though he asserts that he believes RMO1 and RMO2 thought negatively of him because he did
not move as fast or think as quickly as younger employees, Complainant points to nothing in the
record to corroborate this view and such speculation is insufficient to establish his claim.
Even if Complainant is correct that RMO1 committed similar infractions by allegedly giving him
a late PACS review or fraternizing with subordinates, we find that such alleged occurrences do not
convert RMO1 into a comparator or make implausible the articulated justifications for
management’s actions regarding Complainant. The record reveals that the managers were
concerned about a myriad of matters regarding Complainant’s work performance that they
believed negatively impacted the Agency’s operations. Complainant’s failure to improve led them
to host optional PACS meetings, issue a counseling memo, send advisory emails, consider his
removal, and ultimately place him in PA/OP status. We note that Complainant clearly disagrees
with his managers’ assessment of his work performance, but it is not the Commission’s role to
second-guess that business decision and Complainant’s subjective appraisal of his own
accomplishments and performance are insufficient to prove pretext.
We also do not find that management’s feedback or criticisms rose to the level of actionable
discriminatory harassment. On review of the record, the Commission finds that Complainant’s
harassment claim is based on negative work-related feedback that ultimately justified lowering his
performance rating. We also find that this alleged harassment was neither sufficiently severe nor
pervasive so as to have altered the conditions of Complainant's employment by creating a hostile
work environment. Furthermore, we find that Complainant has failed to prove that the managers’
actions were motivated by discrimination or retaliation. We find that Complainant failed to show
that management was aware of his claimed prior EEO activity (predating the instant EEO action).
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To the extent that Complainant received advisory emails after the managers were informed about
his instant complaint, we find that their actions were merely a continuation of their supervisory
duties as managers to provide corrective feedback when an employee’s performance was suffering
and not an act of reprisal.
We find that Complainant failed to show by a preponderance of the evidence that any of the alleged
management actions were motivated by discrimination.
CONCLUSION
The Commission AFFIRMS the Agency’s decision finding no discrimination.
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.
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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 12, 2019
Date
