0120110491
07-16-2014
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120110491
Hearing No. 531-2008-00378X
Agency No. PHI070501SSA
DECISION
On November 1, 2010, Complainant filed an appeal from the Agency's September 28, 2010, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing, and whether the AJ correctly determined that Complainant failed to establish that she was discriminated against.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative (CR), GS-11, in the Agency's Silver Spring, Maryland, facility.
On May 29, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and age (74) when:
1) She was inadequately trained to fulfill the duties of CR;
2) She was forced to increase her caseload to a full rotation in November 2006, by her first level supervisor (S1);
3) on or around December, 2006, S1 and her second level supervisor (S2) denied her choice of mentor;
4) on or around January, 2007, S1 gave her back her reviewed cases in an untimely fashion, which caused a backlog of cases;
5) She was written up on multiple work infractions that she claims were caused by a lack of training; and
6) She was disciplined unfairly by being placed on the probationary Performance Improvement Plan (PIP) and Opportunity to Perform Successfully (OPS) plan; she was unduly denied her Within-Grade Salary Increase (WIGI).
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On April 30, 2009, the Agency submitted its Motion for a Decision Without a Hearing. Complainant did not submit a response to the Agency's motion. The AJ found that there was no dispute as to the material facts and that there is sufficient information upon which to base a decision. The AJ issued a decision without a hearing on August 3, 2010.
The AJ found the following facts:
With regard to claim 1, the AJ found that between March 12 and June 14, 2002, Complainant received four months of Title II CR training, which is the basic training course for all Title II CRs. According to S1, Complainant also received additional on-going programmatic and topic training.
Between June 2002 and September 2004, Complainant was unable to keep up with the required CR duties. According to one of Complainant's indirect supervisors (IS) the reason she was unable to keep up with these required duties was because she was "struggling with her workload and could not multitask." In September, 2004, in response to her difficulties, Complainant's supervisors reduced her duties and she was told to focus primarily on three administrative tasks: interviewing overpaid beneficiaries who requested a waiver of their overpayment, answering telephone inquiries and managing the Modernized Development Worksheet (MDW) listings for the office. Although Complainant's duties were reduced during this period, she did not stop taking claims.
In late October 2006, due to a staff shortage, Complainant and several other CRs who had also been given reduced duties were notified that all CRs would have to resume the full duties of the CR position. Complainant received retraining on every topic that she requested for two full weeks before resuming regular CR duties.
With regard to claim 2, the AJ found that in late October 2006, due to a staff shortage, the Title II claims unit had a meeting where the CRs were notified that they would have to take on an increased caseload to compensate for personnel losses within the unit. Complainant was present at this meeting and was informed of the necessary reorganization.
Complainant was concerned that she would need additional training in order to satisfy her increased caseload. Directly after the claims unit reorganization in November 2006, a unit-wide training refresher program was instituted and all of the CRs were offered retraining on a variety of topics. The purpose of this retraining program, according to S1, was "to get everyone up-to-speed so that everyone had the same baseline."
With regard to claim 3, the AJ found that during the two-week period lasting from November 6 to November 17, 2006, Complainant requested and received retraining on several topics. Complainant claims that the retraining courses were inadequate for her to handle her increased caseload and insisted that she be given a special "mentor" to work directly with her.
The AJ found that the Agency's policy was to offer such mentorship opportunities only to new employees who have just completed basic CR training and not to experienced CRs. At the time that Complainant requested mentorship, she had already been working as a CR for over four years. Nevertheless, S1 attempted to facilitate Complainant's request by speaking with another Title II CR (CW1) who Complainant specifically asked to be her mentor, about possibly accepting that role. CW1 was hesitant to accept Complainant's request because "she did not think she could assist [her] because she had [a large number] of claims to date" and that she needed to have her caseload reduced in order to make enough time to answer Complainant's questions. The Agency did not reduce CW1's caseload, and because of this she did not accept the invitation to become Complainant's mentor. S1 emphasized that "Complainant's choice [of] mentor was never denied, the mentor [she] had chosen simply declined." S2 then directed Complainant to seek the assistance of the Title II unit's resident Technical Expert, (TE1). TE1 was available to assist all employees and it was part of her duties to assist all of the Title II claims staff. Further, all employees had the ability to request assistance from both a Senior CR, and S1. Complainant did not want to be mentored by anyone but CW1, stating that "the other 4 CRs . . . were new, and not really experienced, but they knew more than me." Therefore, Complainant did not receive a personal mentor.
With regard to claim 4, the AJ found that from November 2006 until February 2007, Complainant was assigned 3 appointments per day, which S1 stated was not a full rotation. S1 stated that during a face-to-face meeting-in-October 2006; Complainant agreed to this partially--increased-workload with the understanding that it was a way to "start her off slowly" so that she could eventually work her way up to a normal load of 5 to 6 claims per day. S1 was asked to review Complainant's completed cases and he would consistently return them within 3 to 5 days. However, due to Complainant's prolonged absences in December 2006, he was unable to return her cases during those days. According to S1, Complainant overworked complaints and requested unnecessary documents, which created a backlog of cases.
With regard to claims 5 and 6, the AJ found that one of the Agency's offices received a complaint by a woman who, writing on the behalf of her widowed mother, outlined a negative experience she had with the Complainant on or around November 28, 2006. According to the letter, Complainant erroneously calculated the widow's Social Security benefits and repeatedly left the in-person interview because she did not have copies of the correct documents. The letter also stated that Complainant was unable to correctly enter information into the computer and that she interacted with the woman's widowed mother in a very insensitive and unprofessional manner.
The office also received a letter from another claimant who had described a similar unprofessional and frustrating experience when meeting with the Complainant. This letter outlined how Complainant continually got up from her desk, was distracted by other appointments, and made a number of errors in the application.
S2 and S1 conferred and determined on March 19, 2007 that because of these and other performance problems, that Complainant be placed on a Performance Assistance Plan (PAP) on March 22, 2007. While under a PAP, an employee is given 30 days to improve her performance or be subjected to disciplinary action. During this period, an employee's supervisor reviews and provides feedback on their work as well as written summaries of their discussions.
S1 identified 19 cases that Complainant failed to process in a timely manner or had processed with errors. Many of those cases had been outstanding for longer than three months. S1 also noted that Complainant continually asked the same questions regarding retirement claims and that she failed to properly utilize the online reference resources and the automated claims processing system. It was also noted that Complainant refused to comply with the Agency's policies of maintaining a clean desk, shredding sensitive documents, and discarding papers that she no longer needed.
The PAP evaluation outlined how Complainant argued with co-workers after they answered her questions, refused to accept changes in her workload, and refused to accept constructive guidance and feedback. Complainant failed to acknowledge the PAP criticisms. Complainant's performance did not to improve during the 30-day period. Due to Complainant's failure to improve her work performance during the 30-day PAP period, S1 and S2 agreed to place her on an Opportunity to Perform Successfully (OPS) plan.
Under both the OPS plan and the PAP, employees had their work continually reviewed by their supervisor. The supervisor was required to have regularly scheduled meetings with the employee as well as provide feedback on their performance. S1 met with Complainant bi-weekly and provided written feedback. S1 states that after 120 days on the OPS plan, due to her continual and unresolved poor performance, it was recommended that Complainant be terminated for her failure to successfully perform critical elements of her performance. The supporting documentation for the proposed removal included detailed examples of Complainant's failure to perform her job satisfactorily. S1 attempted to mitigate Complainant's inability to complete her assignments by assigning her 21 cases per week, which were fewer than the standard 25-40 cases per week and fewer than any other CR. Further, he assigned her easier cases and had given her free time in the afternoons to view training videos.
Complainant voluntarily retired in lieu of being terminated on October 31, 2007.
The AJ found that Complainant failed to establish a prima facie case of race or age discrimination because she failed to show that individual outside of her protected classes were treated more favorably than she was. The AJ further found that even assuming, arguendo, that Complainant established a prima facie case of race and age discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Further, the AJ found that Complainant failed to provide any evidence to show that the Agency's proffered reasons were not worthy of credence. As such, the AJ found that Complainant failed to demonstrate that she was discriminated against as alleged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant submitted statements beyond the 30 days permitted to file a brief on appeal. In response, the Agency submitted a brief requesting that the Commission affirm the final order adopting the AJ's finding of no discrimination.
ANALYSIS AND FINDINGS
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
We find that the AJ correctly established that summary judgment was appropriate in this case. The record has been adequately developed, Complainant was provided an opportunity to respond to the Agency's motion, she was given a comprehensive statement of undisputed facts, and she had the opportunity to engage in discovery. We note that throughout the record, Complainant asserted that she had additional information that was not considered. However, Complainant failed to specify why she did not present the evidence, or which evidence she provided that she believed was not considered. As such, we find that the AJ did not err in issuing a decision without a hearing. Accordingly, we now to turn to the merits of the case.
To prevail in a case such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147-48 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Assuming arguendo that Complainant established a prima facie case of age discrimination and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, with regard to claim 1, the record reveals that Complainant received retraining on every topic that she requested for two full weeks before resuming regular CR duties
With regard to claim 2, the record reveals that due to a staff shortage, the Title II claims unit had a meeting where the CRs were notified that they would have to take on an increased caseload to compensate for personnel losses within the unit. Complainant was present at this meeting and was informed of the necessary reorganization.
With regard to claim 3, the record reveals that the Agency did not deny her a mentor. Rather, S1 stated that "Complainant's choice [of] mentor was never denied, the mentor [she] had chosen simply declined." Additionally, S2 informed Complainant to seek the assistance of the Title II unit's resident TE1, who would assist her. All employees also had the ability to request assistance from both a Senior CR, and S1. As such, we find that the Agency articulated a legitimate, nondiscriminatory reason for claim 3.
In response, Complainant stated that did not want to be mentored by anyone but the mentor she chose because "the other 4 CRs . . . were new, and not really experienced, but they knew more than me." We find, however, that this is insufficient to establish that the Agency's proffered reasons were a pretext for discrimination. Accordingly, we find that Complainant failed to demonstrate that she was discriminated against as alleged.
With regard to claim 4, due to Complainant's prolonged absences in December 2006, S1 was unable to return her cases during those days. According to S1, Complainant overworked complaints and requested unnecessary documents, which created a backlog of cases.
With regard to claim 5 and 6, the record clearly reflects that Complainant received complaints and had performance problems. S1 identified 19 cases that Complainant failed to process in a timely manner or had processed with errors. Many of those cases had been outstanding for longer than three months. S1 also noted that Complainant continually asked the same questions regarding retirement claims and that she failed to properly utilize the online reference resources and the automated claims processing system. Complainant refused to comply with the Agency's policies of maintaining a clean desk, shredding sensitive documents, and discarding papers that she no longer needed. As such, S2 and S1 placed Complainant on a Performance Assistance Plan (PAP) on March 22, 2007.
The PAP evaluation outlined how Complainant argued with co-workers after they answered her questions, refused to accept changes in her workload, and refused to accept constructive guidance and feedback. Complainant failed to acknowledge the PAP criticisms. Complainant's performance did not improve during the 30-day period. Due to Complainant's failure to improve her work performance during the 30-day PAP period, S1 and S2 placed her on an Opportunity to Perform Successfully (OPS) plan.
Under both the OPS plan and the PAP, employees had their work continually reviewed by their supervisor. The supervisor was required to have regularly scheduled meetings with the employee as well as provide feedback on their performance. S1 met with Complainant bi-weekly and provided written feedback. S1 states that after 120 days on the OPS plan, due to her continual and unresolved poor performance, it was recommended that Complainant be terminated for her failure to successfully perform critical elements of her performance. S1 attempted to mitigate Complainant's inability to complete her assignments by assigning her 21 cases per week, which were fewer than the standard 25-40 cases per week and fewer than any other CR.
Because we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to show that the Agency's proffered reasons were a pretext for discrimination. We find, however, that Complainant failed to present any evidence to support her position that the Agency's reasons were not worthy of credence or that the Agency was motivated by discriminatory animus. We note that Complainant provided testimony that management mentioned her age and asked when she intended to retire. We note that Complainant has not established that in this case these retirement related comments were intended to be a proxy for age based animus. See Hazen Paper Co. v. Biggns, 507 U.S. 604, 613 (1993). As such, we find that Complainant failed to establish that she was discriminated against based on her age or race as she alleged.
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 Order adopting the AJ's decision without a hearing finding that Complainant failed to establish that she was discriminated against as alleged.
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" 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
__7/16/14________________
Date
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0120110491
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110491