0120110238
01-11-2012
Debbie C. Simpson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Debbie C. Simpson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120110238
Agency No. DAL-10-0171-SSA
DECISION
On October 7, 2010, Complainant filed an appeal from the Agency's September 15, 2010, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Technical Expert, GS-12, at the Agency's Lufkin, Texas District Office.
On February 12, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when:
1. On November 19, 2009, Complainant received an unfair Performance Assessment and Communication Systems (PACS) evaluation rating; and
2. In May 2009 and continuing, Complainant received unfair work distribution and was required to perform varied assigned duties that included Technical Expert and Claims Representative or Service Representative functions.
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). In accordance with Complainant's request, 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.
On appeal, Complainant states that she did not understand that she was not getting a hearing before an AJ.1 Complainant also states that other Technical Experts of other races did not receive the unfair distribution of work that she received. She argues that had the workload not been distributed unevenly, she would have performed successfully. Complainant notes that she was ultimately reduced to a lower grade which she states is an adverse employment action.
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. (November 9, 1999) (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").
At the outset, we note that the record reveals that Complainant was demoted to the position of Claims Representative, GS-11, in March 2010. However, we clarify that the discriminatory incidents at issue in the present case occurred while Complainant worked as a Technical Expert, GS-12.
On appeal Complainant stated that she did not understand that she was not getting a hearing before an EEOC Administrative Judge (AJ). However, the record reveals that Complainant was properly advised of her right to request a hearing before an AJ, but instead requested a final Agency decision.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S.Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14, 1995).
With regard to issue (1), the Agency stated that Complainant received a rating of 1.0 (out of a possible 5.0) on her PACS evaluation ratings in the categories of "Demonstrates Job Knowledge" and "Achieves Business Results" because these ratings accurately stated her supervisor's evaluation of her performance. The Agency noted that Complainant had not demonstrated the ability to evaluate documentation and information in order to make sound adjudicative decisions in a large number of cases she worked. The Agency noted that Complainant had not provided timely service in many cases because of her failure to properly use instructional materials, software, and systems that were available to her. In her affidavit, Complainant's supervisor (S1) noted that although Complainant was supposed to serve a lead role in the mentoring and technical training of other employees and was supposed to provide expert technical advice to other employees, she was not able to accomplish this. S1 stated that Complainant was responsible for the most complex work and in many cases the work was not done properly.
S1 noted that she had a discussion with Complainant in October 2008 regarding work expectations. S1 stated that in April 2009, she had a formal discussion with Complainant and advised Complainant she would be placed on a Performance Assistance Plan (PAP) for thirty days beginning in May 2009. As a result, Complainant met weekly with S1 to discuss her work. S1 stated that after the PAP, Complainant communicated a little better and participated a little more in meetings. However, S1 stated Complainant did not improve in the area of providing training and assistance to employees who sought advice on complex cases in an accurate manner.
The record reveals that when the 30-day PAP ended, Complainant was placed on a 120-day Opportunity to Perform Successfully (OPS) Plan in July 2009. While she was under the OPS Plan, Complainant met bi-weekly with S1. Although the 120-day OPS plan ended in October 2009, S1 delayed Complainant's yearly PACS appraisal until after Complainant completed the OPS Plan. Under the OPS Plan, S1 stated that Complainant did not improve in the areas of "Demonstrates Job Knowledge" and "Achieves Business Results." Specifically, the record reveals, through contemporaneous notes that S1 took regarding the bi-weekly meetings, Complainant continued to have difficulty in areas such as timely responding to Congressional inquiries, failure to timely follow-up with the public regarding cases, problems timely completing cases, and failure to recognize irregularities in cases that needed additional review and analysis. As a result, the Agency assessed Complainant with a "Not Successful," level 1 rating in two of the four critical areas in her position- Demonstrates Job Knowledge, and Achieves Business Results. Complainant failed to show that the Agency's actions were a pretext for prohibited discrimination.
As to the work distribution concern raised in issue (2), the Agency noted that Complainant was assigned work that was consistent with her position as a Technical Expert. The Agency noted that Complainant was the only Technical Expert when she first came to the Lufkin office in 2007, and therefore had a similar workload for a long time before more Technical Expert's were hired in the spring of 2008. The Agency stated that Complainant should have been the most skilled Technical Expert in the office. The position description reveals that part of Complainant's job involved highly complex work, but some of it also included some production (i.e., Claims or Service Representative work) and training, monitoring, and reviewing that work by others. We find Complainant failed to show that the Agency's actions in distributing the workload were based on her protected status.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 11, 2012
__________________
Date
1 While Complainant's brief was submitted beyond the applicable limitations period, the Commission exercises its discretion to consider the arguments submitted in her brief.
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01-2011-0238
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110238