EEOC Appeal 2020001630

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shad R.,1
Complainant,
v.
Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 2020001630
Agency No. CHI-18-0228-SSA
DECISION
On December 26, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s January 22, 2020 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 at the Agency’s New
Albany, Indiana Field Office.
On March 8, 2018, Complainant filed a formal complaint alleging that the Agency unlawfully
retaliated against him for protected EEO activity when:
1. 	on November 9, 2017, he received his Performance Assessment and Communication
System (PACS) performance evaluation and the “Participation” element was reduced
to a three rating (fully successful) when he believed his performance merited a five
rating (outstanding); and
2. 	from November 9, 2017 and ongoing, the Agency subjected him to harassment
concerning his performance.
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.

2020001630	2
After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a
Decision Without a Hearing.
On April 9, 2019, the AJ issued an Order granting the Agency’s motion in part, and denying the
motion in part. The AJ determined that summary judgment was inappropriate regarding claim 1
and determined a hearing should be held on this issue. However, the AJ determined that summary
judgment was appropriate regarding claim 2. Specifically, the AJ determined that claim 2 “should
be dismissed as repetitive of Claim 1.” However, on November 14, 2019, Complainant withdrew
his hearing request and the complaint was sent back to the Agency for issuance of a final decision.
On January 22, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. §
1614.110(b), finding no retaliation as alleged.
The instant appeal followed.
ANAYLSIS AND FINDINGS
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 which, 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 based on 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 its actions, as more
fully discussed below.

2020001630	3
In support of his retaliation claim, Complainant stated that in 2012 he represented another
employee in an EEO complaint and personally filed an EEO complaint in 2014, which was in
federal court at the time he received the performance appraisal at issue. The management officials
involved in the appraisal at issue all admit to knowing about Complainant’s own prior EEO
complaint.
Complainant asserted that on November 9, 2017, he received his PACS performance evaluation
and the “Participation” element was reduced to a level 3 rating.
The record reflects that under PACS, performance is evaluated under four elements: Interpersonal
Skills, Participation, Demonstrates Job Knowledge, and Achieves Business Results. Employees
receive a score of 1 (not successful), 3 (successful) or 5 (outstanding contribution) under each
element. 	To be rated “Outstanding” on an element, the employee must meet all the applicable
standards described as “Successful” and a substantial number (less than all) of the applicable
standards described as “Outstanding” on a sustained basis. Successful contribution (level 3) and
outstanding contribution (level 5) standards have been defined for each element used in PACS
appraisals.
The Operations Supervisor was Complainant’s supervisor during the relevant period. 	The
supervisor acknowledged rating Complainant 3 in “Participation” element and his overall rating
was 3.5. 	The supervisor explained that in the beginning of the fiscal year, management had
expectation discussions with employees and “we also have a midyear discussion around April and
then there is a final discussion in October. There are four elements, each element can be scored 1,
3 or 5. Then the average is taken from those four element ratings to get the overall rating.” She
asserted that she met with Complainant for his initial and mid-year discussions and then conducted
his fiscal year 2017 performance evaluation.
The supervisor further explained that Level 3 in the element of “Participation” indicates the
employee is doing “their job well. It means that employee provided quality support to customers,
sought solutions to problems, provided assistance to others when requested, completed work
assignments, and adapted to work adjustments. In order to get a 5 in Participation, the employee
needs to go above and beyond that.” She stated that in Complainant’s case, he did not take on any
additional workloads during fiscal year 2017. The supervisor also noted that Complainant did not
routinely volunteer to help others complete their work other than when they came to him with
questions.
Moreover, the supervisor noted that Level 5 in “Job Knowledge” is assisting co-workers in
analyzing complex situations. 	She stated that Complainant “routinely shares information with
others on how to process complex cases; I gave him credit for that in Job Knowledge. 	In
participation, [however] he did not meet requirement for level 5.”
Complainant asserted that the rating process/practice was not followed and that he was level 5 the
year before and his participation was the same or more than the year before.

2020001630	4
The supervisor noted, however, that in fiscal year 2016, Complainant performed duties of a mentor
in addition to his regular assigned work. She stated, however, in fiscal year 2017, Complainant
did not serve as a mentor and “he did not take on any additional work. His 24 bullet points are
mainly information about policy and procedures and information on how to help processing
complex cases.”
The Acting District Manager averred that the supervisor evaluated Complainant’s performance for
the fiscal year 2017 and “his performance demonstrated he was fully successful. 	He did not
demonstrate in the area of participation that he had exceeded expectations on a sustained basis
throughout the fiscal year. Therefore, he was rated as fully successful, level 3.”
Beyond his bare assertions, Complainant failed to prove, by a preponderance of the evidence, that
the proffered reasons for his rating were a pretext to mask the role retaliatory animus played in his
appraisal. Significantly, Complainant’s prior EEO complaint was active during the previous rating
year, when it is undisputed that he received a level 5 rating for the participation element. There is
no reason to believe that responsible management had more impetus to retaliate against him in the
current appraisal year rather than the previous one. 	Management witnesses proffered credible
evidence distinguishing Complainant’s work performance in the participation element between the
two years. Moreover, while the AJ identified some examples of possible disparate treatment in
denying the Agency’s motion for summary judgment, Complainant chose not to develop the
evidence on this topic by withdrawing from the hearing. Based on the evidence developed during
the investigation, we conclude Complainant failed to prove he was the victim of unlawful
retaliation as alleged.
Finally, to the extent that Complainant also offered his appraisal in support of a discriminatory
harassment claim, he again has simply provided no evidence to support his claim that his treatment
was the result of his prior EEO activity. A case of harassment is precluded based on our findings
that Complainant failed to establish that any of the actions taken by the Agency were motivated
by his protected basis. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21,
2000).
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that unlawful retaliation occurred.

2020001630	5
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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, 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).

2020001630	6
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
October 14, 2020
Date