Neta P.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 8, 2019

2019001946 (E.E.O.C. Nov. 8, 2019)

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

Neta P.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 2019001946

Hearing No. 490-2018-00065X

Agency No. DAL-17-0429

DECISION

On April 15, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s January 10, 2019 final order 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Claims Technical Expert, GS-12, at the
Agency’s Forest City Field Office in Forest City, Arkansas.

On April 25, 2017, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her based on race (African-American), sex (female), and age
(44) when, on February 7, 2017, another employee (“Employee 1”) (Caucasian male, under 40)
was reassigned to a GS-12 Management Support Specialist (“MMS”) position in the Forest City

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.

2019001946

2
office without giving anyone else, including Complainant, notice that the opportunity was
available as a promotion or lateral reassignment.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 December 12, 2018, the AJ issued a decision by summary
judgment in favor of the Agency.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Here, Complainant has failed to identify with any specificity any evidence of record that
would have led to the need for a hearing. Even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in
Complainant’s favor.

2 On May 25, 2017, the Agency issued a final decision dismissing the instant formal complaint
for failure to state a claim. On appeal, the Commission reversed the Agency’s dismissal and
remanded the matter to the Agency for further processing. Complainant v. Social Security
Administration, EEOC Appeal No. 0120172418 (September 6, 2017). Following the
Commission’s decision, the Agency processed the remanded claim in accordance with 29 C.F.R.
§ 1614.108, which is now the subject of the instant appeal.

2019001946

3
A claim of disparate treatment is examined under the three-party 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 of discrimination by presenting facts that, 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 on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint.

During the relevant period, Complainant’s permanent position was a GS-12 Technical Expert
which involves Title 2 claims. Complainant had never held a position involving consistent work
with Title 16 claims, and had no experience as a Title 16 Technical Expert or as a Technical
Expert Representative.

The Operations Supervisor was Complainant’s first level supervisor and the District Manager
was Complainant’s second level supervisor.

From February 21, 2016 to June 19, 2016, Complainant served a detail as GS-12 Management
Support Specialist in the Forrest City, Arkansas Field Office. At the time of her detail, the
Operations Supervisor and District Manager were also serving on details.

Employee 1 had Title 16 experience, and was laterally reassigned from his position as a
Technical Expert to a Management Support Specialist position.

The AJ noted that reassignments which do not provide specialized training for the purpose of a
subsequent promotion may be taken on a noncompetitive basis.

The AJ further noted that the District Manager (African-American male, year of birth 1959),
stated that he requested Employee 1 be reassigned to the Management Support Specialist
position due to a need for experienced assistance with the Title 16 workload in the Forrest City
Field Office. Specifically, the District Manager explained that before he became the District
Manager, he worked a dual role as Assistant District Manager (“ADM”)/Operations Supervisor
for Title 16 unit and “once I was promoted to the DM position, there was no longer any adequate
supervision of the Title 16 Unit. It only had four experienced employees, plus 2 trainees, and
needed more trained Specialists in the unit, in addition to increased management capacity. I had
been in that ADM/Operations Supervisor since 2002. I knew exactly what the needs were for
this work unit.”

2019001946

4
The District Manager stated that while he was familiar with Complainant’s areas of expertise and
noted that Complainant had completed a Management Support Specialist detail. However, the
District Manager found that “the need for the unit was in the Title 16 SSI area of our work. That
was [Employee 1’s] specialty.”

The Human Resources (“HR”) Specialist (mixed race, male, year of birth 1978) explained that he
was not involved in the process reassigning Employee 1 to the Management Support Specialist
position. The HR Specialist stated, however, this was a non-competitive reassignment meaning
“the grade and specialized experience for that position is equal to the person being placed in that
position. This is a non-bargaining unit position. According to our AFGE agreement and
protocols, if the person is non-competitive reassignment from a bargaining to non-bargaining
unit and the promotion is not any greater, the person can be placed in the position without having
to compete.”

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant
did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext
designed to mask discrimination. However, beyond bare assertions, Complainant has not
provided any evidence that the focus on Title 16 experience in making the chose of employees to
laterally reassign to the position in question was unreasonable or tainted by considerations of
race, sex and age.

CONCLUSION

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing,
finding no discrimination.

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.
2019001946

5
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.

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.
2019001946

6
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

November 8, 2019
Date