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
2
0520110714
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110714