January B.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionJan 26, 20180120180298 (E.E.O.C. Jan. 26, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 January B.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120180298 Hearing No. 480-2013-00493 Agency No. SF-13-0012 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated October 13, 2017, finding no discrimination with regard to her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND In her complaint, Complainant alleged discrimination based on age (over 40), disability (side effects related to cancer treatments, visual impairment, bilateral knee arthritis), race (White), religion (Jewish), and in reprisal for prior EEO activity when she was subjected to disparate treatment and non-sexual harassment in that: (1) On August 17, 2012, the Group Supervisor, her immediate supervisor (S1) called her while she was on scheduled leave to inform her that she was placing her on a 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. 0120180298 2 Performance Assistance Plan (PAP). Later that afternoon, S1 called her on her cell phone and berated her for not calling her back “within a reasonable time.” (2) On August 21, 2012, she was issued a proposed PAP document via email, which she considered extremely flawed and on September 13, 2012, S1 issued a final PAP document effective September 17, 2012, for 90 days. (3) On August 29, 2012, she was called to a meeting to discuss the proposed PAP. She was informed that S1 would be her mentor which she questioned due to S1’s hostile treatment of her. (4) On September 17 and 18, 2012, S1 called her on her cell phone for a non-emergency matter while she was on leave observing a Jewish religious holiday. (5) On September 18, 2012, S1 informed her that she opposed her participation in an Agency meeting in Baltimore scheduled for September 27, 2012, because she was on a PAP and was not considered an employee “in good standing.” S1 asked her to cancel all travel arrangements. (6) On October 3, 2012, she was subjected to unreasonable hostility when she received an email from S1 criticizing two decisions she submitted on September 24, 2012. She was later criticized at a PAP meeting regarding her submission of the two cases. (7) On October 3, 2012, 30 minutes prior to the start of a PAP meeting, S1 sent her and her representative a 10-page single spaced typed document entitled “Performance Assistance Plan (PAP) Weekly Progress Report.” Her request for time to adequately review the document was denied. Further, her request for a productivity index for August and September 2012, was not granted. (8) On October 4, 2012, S1 manipulated her case assignments in order to lengthen her average case processing time when she assigned her two cases late in the afternoon knowing she would be out of the office until October 10, 2012. (9) On October 10, 2012, S1 failed to provide her adequate time to review a six-page single spaced typed report prior to attending a meeting with S1. (10) As of October 10, 2012, she has not received a response to her July 2, 2012 request for a hardship transfer. Upon completion of the investigation of the complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On December 9, 2013, the Agency filed a Motion for Summary Judgment and Complainant filed a response to the Agency’s motion opposing a decision without a hearing on January 10, 2014. On January 21, 2014, the Agency filed its reply in support of its Motion for Summary Judgment. 0120180298 3 On September 29, 2017, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. Complainant appeals the Agency’s final order.2 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. In the instant case, the AJ incorporated by reference all the undisputed facts in the Agency’s Motion for Summary Judgment. The AJ, assuming arguendo that Complainant had established a prima facie case of discrimination, determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. At the relevant time, Complainant was employed by the Agency as an Attorney Advisor, GS-12, in its Office of Disability Adjudication and Review (ODAR), West Los Angeles Hearing Office, Los Angeles, California. Complainant had been in that position since 1998. S1 was Complainant’s immediate supervisor from April 2011, to January 25, 2013, at which time she was placed on a detail as the Hearing Office Director in Long Beach, California, for 60 days. S1 came back to her supervisory position in the West Los Angeles office but did not supervise Complainant. As an Attorney Advisor, Complainant’s primary duties were to write administrative law decisions for Agency’s Administrative Law Judges (ALJs). The record indicates that during the relevant time, Complainant participated in 2 Despite Complainant’s contentions, we note that the Agency’s December 27, 2017 appeal brief was within 30-day time limit upon its receipt of Complainant’s November 18, 2017 appeal brief on November 27, 2017. 29 C.F.R. § 1614.403(f). Complainant also claims that the Agency improperly failed to provide her the exhibits enclosed along with the Agency’s appeal brief although they were submitted to the Commission. However, the record reflects and Complainant does not dispute that the Agency has already provided the enclosed exhibits(i.e., the complaint file, including the report of investigation, the Agency’s motion for summary judgement, Complainant’s opposition thereto, and AJ’s decision) to her. 0120180298 4 flexi place program working at home on Mondays and Fridays and in the West Los Angeles Hearing Office on Tuesdays, Wednesdays, and Thursdays. Regarding claim (1), S1 acknowledged calling Complainant on August 17, 2012, Friday, to discuss S1’s decision to place her on a PAP because that day was Complainant’s normal flexi place day. S1 indicated that although she signed Complainant’s leave slip the day before, she did not remember Complainant had scheduled leave because she signed numerous leave slips and she believed Complainant was working from home since it was Friday, her flexi place day. S1 stated that she would not have called Complainant had she known Complainant was on leave. Regarding claim (2), S1 indicated that during the relevant time, Complainant was issued the PAP for her poor performance. The record indicates that on May 10, 2012, during her mid-year FY 2012 performance appraisal, S1 issued Complainant a memorandum indicating that she was not writing enough legally sufficient drafts, and she could increase both the quantity and quality of the drafts she wrote. Therein, S1 specified that: in October 2011, an ALJ placed Complainant’s draft in correction status due to concerns that she cited inapplicable facts and incorrectly described the main issue in the case; in December 2011, she failed to follow the ALJ’s instruction utilizing a specific template which caused the ALJ to issue amended decisions; in February 2012, she failed to follow the basic instructions of the ALJ regarding the electronic file and S1 had to revise her draft decision; in March 2012, the ALJ expressed concern that her draft failed to discuss medical objective findings or lack thereof; on December 21, 2011, an ALJ provided her with feedback on her draft and asked her to clarify/address certain medical issues and when her second and third drafts did not adequately address such, the ALJ reassigned the case to another attorney; in February 2012, two ALJs placed her drafts in correction status due to insufficient analysis thereof; in February and March 2012, her first, second, and third drafts lacked adequate discussion of the evidence and S1 reassigned the case to another attorney since the ALJ would be unavailable to review her fourth draft; and, in April 2012, an ALJ informed S1 that her drafts contained no analysis of the claimants’ allegations of severity and merely contained blanket statements and S1 reassigned these cases to a senior attorney. Complainant signed, without any protest, her receipt of the foregoing memorandum on May 10, 2012. S1 also indicated that from the start of fiscal year 2012, until March 2012, Complainant’s cumulative Decision Writer Statistical Index was 87% whereas the office average was 104% which showed that she was not meeting expectations with respect to writing timely and legally sufficient draft decisions within the benchmarks to complete drafts. S1 stated that she decided to place Complainant on a PAP due to her continuing performance issues, including factual inaccuracies in describing evidence and a lack of articulation of the supporting rational for the ALJ’s deposition. In the PAP dated September 13, 2012, S1 cited seven incidents from March 2012, to July 25, 2012, wherein which AJLs complained to S1 about Complainant’s poor drafts. Regarding claim (3), S1 indicated that she decided to mentor Complainant during the PAP period since S1 was an experienced attorney who had knowledge in reviewing draft decisions. Complainant objected to that and asked for either one of two identified Senior Attorney Advisors as her mentor, but they were not available to mentor her during the relevant time. S1 indicated 0120180298 5 that she then tried to assign one identified Senior Attorney Advisor who was available at the relevant time as her mentor but Complainant objected/rejected the offer. An identified Attorney Advisor stated that it was her experience that the mentor was generally the employee’s immediate supervisor, as S1 was for Complainant. Regarding claims (4) and (5), S1 acknowledged calling Complainant on September 18, 2012, as directed by her supervisor, a Hearing Office Director, after they received the information on September 17, 2012, that Complainant was making travel arrangements for Government Travel for which she nor any management had approved. S1 indicated that on September 18, 2012, the Director instructed S1 to call Complainant on September 18, 2012, to cancel her travel arrangement immediately. The Director confirmed the foregoing statements. S1 also stated that since Complainant was corresponding with the Central Office on her day off, September 17, 2012, to make travel arrangements for government travel, S1 felt it was permissible to call her on that day and it was also important to call her immediately before she booked a flight as she was in the process of booking it. S1 indicated that she was aware Complainant was on leave but did not recall whether she was aware Complainant was observing a religious leave holiday. S1 noted that on September 20, 2012, she learned that Complainant had been selected by the union to attend a conference in Baltimore and her travel had been approved by headquarters but had not been communicated to the region or to her office. S1 denied telling Complainant that S1 opposed her participation in that conference. Furthermore, Complainant was allowed to attend the conference. Regarding claim (6), S1 denied treating Complainant with unreasonable hostility regarding any of her decisions as alleged at the relevant time. The record indicates that on October 9, 2012, S1 issued Complainant her PAP weekly progressive report notifying her that, among other incidents, on October 3, 2012, an ALJ complained to S1 that Complainant submitted her draft directly to the ALJ instead of submitting initially to S1 during the PAP period under the terms of the PAP. The record also indicates that on October 10, 2012, S1 issued Complainant her PAP monthly memorandum notifying her that, among other issues, her two drafts submitted on September 24, 2012, contained errors in the Residual Functional Capacity section which had to be corrected. Complainant does not dispute this. Regarding claim (7), S1 indicated that on September 20, 2012, S1 informed Complainant and her union representative that weekly meetings would occur every Wednesday at 10 A.M. Thirty minutes prior to the October 3, 2012 meeting, S1 informed Complainant via email that if she needed additional time to discuss the attached memo to let S1 know; otherwise she would see her at 10:00 A.M. Neither Complainant nor her union representative responded to S1’s email to request additional time. Complainant does not dispute this. Complainant claims that she requested additional time to prepare at the meeting. S1 noted that the purpose of these weekly PAP meetings was to discuss Complainant’s performance from the prior week and thus, Complainant did not need to prepare. Furthermore, S1 stated that the majority of the comments S1 made during the meetings were already given to her in the prior week. In addition, S1 0120180298 6 indicated that on October 17, 2012, S1 provided Complainant her requested productivity index for August and September 2012. Complainant does not dispute this. Regarding claim (8), Complainant claimed that S1 exhibited a pattern of assigning cases to her late on Thursdays prior to her flexi place days of Friday and Monday. S1 acknowledged that she routinely assigned cases to her Attorney Advisors, including Complainant, and Senior Attorneys, on Thursdays because most of them worked at home on Fridays, as Complainant did, and she wanted to make sure they had enough cases in their workload listings to take home for flexi place and work on upon their return to the office. S1 denied manipulating case assignment as alleged. Upon review, we find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances. S1 stated that on October 4, 2012, when she assigned two cases to Complainant, she did not know Complainant already left the office for the day. Complainant did not claim that S1 assigned her cases late on any other day other than this one single incident; nor did she claim that this assignment affected her performance adversely. Regarding claim (9), S1 indicated that she sent the report at issue via email a day before for the following Wednesday PAP meeting. Furthermore, stated S1, under the terms of the PAP, S1 was not required to provide the subject reports to Complainant prior to the meeting; rather S1 did it as a courtesy. Complainant does not dispute this. S1 indicated that over the 90-day PAP, she prepared approximately eleven weekly progress reports. Regarding claim (10), Complainant indicated that on June 29, 2012, she made her request for a hardship transfer from her West Los Angeles office to the Downtown Los Angeles office due to a hostile work environment. Complainant claims that she mailed her written request to the Agency’s Human Resources office in Richmond, California, which was received on July 2, 2012. As of October 10, 2012, Complainant had not received a response. The Regional Management Officer indicated that his office previously received Complainant’s initial hardship transfer request to be transferred from the West Los Angeles office to the Downtown Los Angeles office on August 26, 2011. The Officer stated that to be considered a valid hardship transfer, an employee needed to have a situation that was beyond their control, required a permanent change in duty station outside the commuting area, and would cause a serious personal or financial hardship. And, indicated the Officer, the staffing needs of the gaining office were also considered. The Agency noted that the Downtown Los Angeles office was located merely 14 miles away from the West Los Angeles office. The Officer indicated that on September 30, 2011, he denied Complainant’s August 26, 2011 transfer request since she failed to meet the requisite criteria. Complainant does not dispute this. The Officer stated that his office again received Complainant’s second hardship request at issue in July 2012. However, the Officer found that since the second request was based on the same circumstances as the August 2011 request of which Complainant failed to meet the requisite criteria of the hardship transfer and because there had been no changes since her 2011 request, 0120180298 7 the second request did not warrant a new decision. The Officer indicated that at the relevant time, he did not know Complainant’s race, religion, age, or her prior EEO activity. S1 indicated that Complainant never informed her of any hardship request or her desire to leave the office. Upon review, we find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances concerning the hardship transfer request at issue. It is noted that we do not address in this decision whether Complainant is a qualified individual with a disability. Furthermore, we note that Complainant has not claimed that she was denied a reasonable accommodation or that she was required to perform her duties beyond her medical restrictions. Complainant acknowledged that she could perform her job duties without any accommodations. We also find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances or that the Agency’s reasons for its actions were a pretext for discrimination. It appears that Complainant was not happy with S1’s management style and S1’s higher expectations from her attorneys than her predecessor. Complainant agreed that she “was not getting along with [S1].” The Agency noted that when S1 was an Attorney Advisor, prior to her promotion to the position as Complainant’s supervisor, she was one of the most productive attorneys, writing an average of one decision a day. After a review of the record, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as she alleged. Regarding her claim of harassment, the AJ found and we agree that Complainant failed to establish the severity of the conduct in question or that it was related to any protected basis of discrimination. After a review of the record, we find that the record is adequately developed and there are no material facts in dispute. We also find that the AJ properly found that the complaint was properly decided without a hearing and that the AJ properly adopted the Agency’s statement of undisputed facts. Upon review, the AJ found and we agree that there is no evidence that the Agency’s articulated reasons were untrue or otherwise indicative of pretext. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 0120180298 8 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120180298 9 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 January 26, 2018 Date Copy with citationCopy as parenthetical citation