Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 25, 2015

0120132273 (E.E.O.C. Mar. 25, 2015)

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

Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120132273

Hearing No. 541-2012-00039X

Agency No. DEN-11-0121-SSA

DECISION
Complainant filed an appeal from the Agency’s final order dated May 15, 2013, 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.
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, dated February 24, 2011, Complainant alleged discrimination based on age
(over 40) and in reprisal for prior EEO activity when: (1) she was suspended for 14 days
effective November 28, 2010; and (2) she was subjected to several desk audits during 2010.
Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On March 29, 2013, the AJ issued a decision without
holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s
decision.

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
0120132273

2
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, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was
employed as a Contact Representative (Service Representative), GS-0962-07/02, in the
Agency’s Ogden, Utah District Office. The Agency indicated that as a Service Representative,
Complainant was responsible for processing requests from beneficiaries for payment critical
actions, such as address changes, direct deposit changes, representative payee, Medicare
enrollment requests, student benefit requests, and applications for social security numbers.

With regard to claim (1), Complainant’s supervisor (S1) indicated that she issued Complainant
a proposal to suspend at issue because she failed to timely process her work and she
misrepresented the status of her work by indicating to S1 that she completed the work when
she did not. In the proposal, S1 cited 24 cases that were mishandled by Complainant.
Complainant’s District Manager stated that after reviewing S1’s proposal, she decided to issue
the 14-day suspension at issue due to the nature and seriousness of Complainant’s mishandling
of her work and misrepresenting the status of her work to S1 on numerous occasions.

With regard to claim (2), the District Manager stated that in February 2010, S1 conducted an
initial office-wide desk audit for all Service Representatives, including Complainant, after the
office received complaints from the public. S1 stated that during the initial office-wide audit,
S1 found over 100 cases that were more than a year old that Complainant failed to process and
the work was under her desk, in boxes, in her overhead bin, and in her training materials; and
also she hid the work and did not inform S1 about that. S1 indicated that after the foregoing
discovery, Complainant’s work needed to be checked more frequently to find out the status of
her work and her workloads and assign her work to others because she was not completing the
work.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for the alleged incidents. Furthermore, we
find that Complainant failed to show that she was treated less favorably than a similarly
0120132273

3
situated employee under similar circumstances. 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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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”
0120132273

4
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

(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

Date
March 25, 2015