Vasiliki B.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 19, 2019

0120180512 (E.E.O.C. Mar. 19, 2019)

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

Vasiliki B.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120180512

Hearing No. 440-2016-00140X

Agency No. CHI-15-0651-SSA

DECISION

On November 24, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 23, 2017, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Teleservice
Representative, GS-7, at the Agency’s Teleservice Center in Chicago, Illinois.

On August 1, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of age (45) when:

1. from October 2014 through May 1, 2015, Complainant was subjected to
harassment, including supervision and a Performance Improvement Plan; and

2. on May 1, 2015, Complainant was terminated during her probationary period.

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.
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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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the
AJ denied the hearing request because Complainant failed to comply with the AJ’s orders to file
prehearing submissions. The AJ remanded the complaint to the Agency, and the Agency issued
a final decision, pursuant to 29 C.F.R. § 1614.110(b), based on the evidence developed during
the investigation. The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

Complainant appealed asserting that the Agency erred in finding no discrimination. She
provided a statement from a coworker at the time who asserted that he believed Complainant was
doing fine and that she was treated “unfairly.” The Agency asked that the Commission affirm its
decision finding no discrimination.

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. (Aug. 5, 2015) (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”).

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
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analysis, the ultimate issue of whether Complainant has shown by a preponderance of the
evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Servs., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

Upon review of the record, we find that the Agency has met its burden of articulated legitimate,
nondiscriminatory reasons for its action. The Manager averred that Complainant was hired in
May 18, 2014, and provided 16 weeks of training. Following the training, the Manager stated
that the new employees like Complainant were provided with post-class mentoring. During this
time, the supervisors are provided feedback from the mentors regarding their progress or lack
thereof. Based on the feedback, the supervisors determine if the new hires can handle calls
independently. The Manager stated that Complainant received 23 weeks of post-class
mentoring. Complainant’s supervisor (Supervisor) determined that Complainant had not
demonstrated growth and was not able to handle calls independently without the assistance of her
mentor. As such, the Supervisor placed Complainant on a Performance Improvement Plan (PIP)
from February 17, 2015 through April 2, 2015. The Supervisor said she provided Complainant
additional time after the PIP to demonstrate significant performance improvement. The
Supervisor indicated that Complainant failed to do so. She averred that Complainant was
observed answering questions without first looking the information up which was mandatory for
her position. The Supervisor also discussed calls and Complainant was not able to figure out
why the caller was calling the Agency. The Supervisor observed that Complainant was not able
to handle calls without assistance on a consistent basis. As such, the Supervisor removed her.

We turn to Complainant to establish that the Agency’s reasons were pretext for discrimination
based on age. Complainant argued that she was doing fine and progressing in her training. She
believed she was treated unfairly. However, we find that her assertions alone are not sufficient
to show that the Agency’s reasons were pretext for age discrimination.

Harassment

Complainant asserted that the events alleged in claims (1) and (2) constituted a hostile work
environment. To prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of a protected basis -- in this case, her age. Only if
Complainant establishes both of those elements -- hostility and motive -- will the question of
Agency liability present itself.

Here, as already concluded above, there is no evidence to support a finding that Complainant's
age played any role whatsoever in the decisions regarding claim (1). Moreover, the responsible
management officials provided a legitimate, nondiscriminatory explanation for alleged events as
noted above. Further, as to Complainant’s assertions that she was subjected to extensive
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supervision and the Performance Improvement Plan, we note that not every unpleasant or
undesirable action which occurs in the workplace constitutes an EEO violation. See Shealey v.
EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC
Appeal No. 0120093688 (Dec. 19, 2009). Even assuming that the conduct alleged was
sufficiently severe or pervasive to create a hostile work environment, we find that Complainant
has not shown that any of the alleged incidents were motivated by discriminatory animus based
on her age.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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.
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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. 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

March 19, 2019
Date