Howard Robertson, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 6, 2012
0520110714 (E.E.O.C. Mar. 6, 2012)

0520110714

03-06-2012

Howard Robertson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.




Howard Robertson,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Request No. 0520110714

Appeal No. 0120092726

Hearing No. 410-2007-00295X

Agency No. ATL-06-2372-SSA

DENIAL

Complainant timely requested reconsideration of the decision in Howard

Robertson v. Social Security Administration, EEOC Appeal No. 0120092726

(Aug. 23, 2011). EEOC Regulations provide that the Commission may, in its

discretion, grant a request to reconsider any previous Commission decision

where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).

BACKGROUND

Complainant enrolled in a program to train benefits authorizers.

During training, he felt that the Agency was assigning him tougher

tasks and more stringent deadlines than other trainees, and was pairing

him with a series of inadequate mentors. The Agency’s inadequate

training, coupled with subjective performance standards, resulted in him

being placed on a Performance Assistance Plan. He eventually left the

training program. In his formal EEO complaint, Complainant attributed

his training problems to race (African-American) discrimination.

The previous decision found substantial evidence in the record to support

an EEOC Administrative Judge’s (AJ) finding of no discrimination

on the basis of race. The previous decision found that the Agency

evaluated Complainant’s progress by examining several factors: level

of independence; level of production, accuracy, and complexity of work

processed; level of proficiency; application of time; and reasonable

progress from month to month.

During training, the Agency placed Complainant in two modules (the second

one came after Complainant requested reassignment) and assigned him

to nine different mentors of various races. The mentors noted various

performance issues with Complainant. For example, some found that he

needed to increase his independence, productivity, and accuracy. Others

found that he had problems using various systems for case processing.

Because of Complainant’s ongoing performance issues, he was eventually

placed on a Performance Assistance Plan. After Complainant failed to

sufficiently increase his production or accuracy, the Agency granted

Complainant’s request to be downgraded to his former position.

The previous decision found substantial evidence to support the AJ’s

finding that the reason for Complainant’s difficulties was not due to

his race, but rather to his unsuccessful performance in the training

program, despite working with nine mentors under two different module

managers.

CONTENTIONS ON RECONSIDERATION

Complainant reiterates his previous arguments: the Agency did not

treat him equally or fairly because it assigned him more difficult work

than other trainees and inadequately mentored him. He also faults the

subjective nature of the criteria used by mentors to evaluate trainees’

performance. He invites the Commission to review the Agency’s

standards, and advocate for a uniform set of standards for all trainees.

He maintained that this will ensure that managers cannot discriminatorily

single out employees under the guise of subjective standards.

ANALYSIS AND FINDINGS

“A request for reconsideration is not a second appeal to the

Commission.” Equal Employment Opportunity Management Directive

for 29 C.F.R. Part 1614 (EEO-MD-110), at 9-17 (Nov. 9, 1999). Here,

Complainant essentially raises the same arguments that he had previously

made on appeal. We note that his request for reconsideration does

not highlight any particular error that would prove that his training

experiences were based on race. Rather, Complainant essentially argues

that the Agency singled him out and treated him differently from all

other trainees. Simply alleging that the Agency did not follow relevant

personnel procedures in his particular case, but did so with everyone

else, irrespective of race, is not sufficient to demonstrate clear

error in a finding of no race discrimination. Moreover, we decline

Complainant’s invitation to scrutinize and advocate for the Agency to

adopt more objective criteria in evaluating its trainees.

After reviewing the previous decision and the entire record, the

Commission finds that the request fails to meet the criteria of 29

C.F.R. § 1614.405(b), and it is the decision of the Commission to deny

the request. The decision in EEOC Appeal No. 0120092726 remains the

Commission's decision. There is no further right of administrative

appeal on the decision of the Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission’s decision. 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.

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

__3/6/12________________

Date

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0520110714

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0520110714