2020001630•EEOC Appeal 2020001630
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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
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