Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 30, 2013

0120121454 (E.E.O.C. Jan. 30, 2013)

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

,
Complainant,

v.

Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120121454

Hearing No. 531-2010-00055X

Agency No. HQ-09-0246-SSA

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s December 21, 2011 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. For the following reasons, the
Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a former Budget Analyst
in the Agency’s Office of Budget in Baltimore, Maryland. Complainant was employed by the
Agency from May 2002 to October 2006. Around December 2008, Complainant applied for
an Administrative Officer position with the National Institutes of Health of the Department of
Health and Human Services. Complainant had an interview with three individuals including
the Chief of the Administrative Management Branch (Chief). In January 2009, the Chief
contacted Complainant’s last supervisor (S1) for a reference. S1 told the Chief that she had
only supervised Complainant for a short time, did not know Complainant well enough to
comment on her performance, and referred the Chief to Complainant’s former supervisor (S2).
The Chief then contacted S2 for a reference. S2 told the Chief that Complainant often gave
push back on assignments, had problems with co-workers, and he would not likely rehire
Complainant. In February 2009, Complainant learned that she was not selected for the
position.

On March 26, 2009 (and amended on August 29, 2010), Complainant filed a formal complaint
alleging that the Agency discriminated against her in reprisal for her prior protected EEO
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activity when management officials gave derogatory and false statements to a potential
employer which prevented her from being selected to the Administrative Officer position with
the National Institutes of Health.1

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. The AJ held a hearing
on March 8, 10, and 31, 2011, and issued a bench decision on September 23, 2011.

In his decision, the AJ assumed arguendo that Complainant had established a prima facie case
of reprisal and determined that the Agency had articulated legitimate, non-retaliatory reasons
for its actions. Specifically, S1 testified that she had only supervised Complainant for three
months, did not know her well enough to provide a reference, and could not really attest to the
quality of Complainant’s performance or whether she got along with her co-workers. As a
result, S1 referred the Chief to S2 who supervised Complainant for a longer period of time.
The Chief found S1’s response to be reasonable and did not draw any negative conclusions
from S1’s response.

S2 testified that Complainant was only an adequate employee and that he told the Chief he
would not likely rehire her because he had expected an excellent employee when she was
hired. Further, S2 testified that Complainant had several conflicts with co-workers. One
example was her placement of mothballs around the office which bothered a co-worker and
required S2 to be called out of a meeting to address the problem. The situation recurred and
eventually was elevated to and resolved by the Commissioner. S2 provided another example
where Complainant resisted her Team Lead’s (TL) request to change cubicles to be closer to
the team. As a result of Complainant’s refusal, TL had to move several other co-workers
which caused conflict in the office. Further testimony from co-workers revealed additional
instances of Complainant’s interpersonal conflicts.

TL testified that Complainant insisted on doing things her way rather than what was asked.
Additionally, TL testified that Complainant did not coordinate well, was not collaborative,
asked few questions, and was defensive if asked to make a change. The AJ found management
and the co-workers’ testimony regarding the incidents more credible than Complainant’s
version.

The AJ determined that Complainant had presented no evidence that management’s actions
were pretextual. As a result, the AJ concluded that Complainant had not been retaliated
against as alleged. The Agency subsequently issued a final order adopting the AJ’s decision.

1 In her formal complaint, Complainant additionally alleged sex, age, and race as bases of
discrimination. The Administrative Judge dismissed these bases for failure to state a claim.
Complainant does not challenge this dismissal on appeal; therefore, the Commission declines to
address the matter in this decision.
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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in finding that management was unaware of
her prior EEO activity. Complainant argues that management officials gave contradictory
testimony about her perceived interpersonal conflicts. Further, Complainant contends that she
was never issued any written discipline; therefore, management’s testimony was not credible.
Accordingly, Complainant requests that the Commission reverse the Agency’s final order.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

Disparate Treatment - Reprisal

To prevail in a disparate treatment claim 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 Cortstr. 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). 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 Products, Inc., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

Upon review, the Commission finds that the AJ's findings of fact are supported by substantial
evidence. Assuming arguendo that Complainant established a prima facie case of reprisal, the
Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its
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actions. Specifically, S1 testified that she explained to the Chief that she had only supervised
Complainant for a short time and did not feel that she had appropriate knowledge to provide an
adequate reference. Hr’g Tr., Vol. 2, at 243-44. Instead, S1 referred the Chief to S2. The
Chief did not think S1’s response was a negative reference, but did consider negatively
Complainant’s failure to identify S2 as a reference. Hr’g Tr., Vol. 2, at 15, 59.

When the Chief spoke to S2, the Chief noted that the position for which Complainant applied
required the ability to deal with difficult people and situations. In response, S2 told the Chief
that Complainant had a few interpersonal conflicts with co-workers on her team. Hr’g Tr.,
Vol. 2, at 165, 168. One incident involved Complainant’s placement of mothballs around the
office which caused health issues for some employees. S2 was called out of a meeting in
Kansas City to participate in a management conference call to resolve the incident. Id. at 169.
Another incident involved Complainant’s refusal to relocate her cubicle to be closer to her
team as requested by TL which was disruptive to the rest of the office. Id. at 112, 171. S2
testified that he stated that he would not likely rehire Complainant because she performed at an
adequate level and did not show the potential to become a superior employee. Hr’g Tr., Vol.
3, at 14. In support, TL added that Complainant was difficult to work with, not very
collaborative, and tended to be very defensive when asked to make a change. Hr’g Tr., Vol.
2, at 133-35.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
retaliatory events, Complainant now bears the burden of establishing that the Agency’s stated
reasons are merely a pretext for reprisal. Shapiro v. Soc. Sec. Admin., EEOC Request No.
05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's
proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450
U.S. at 256. The Commission finds that the substantial record evidence supports that
Complainant failed to establish pretext. The record and facts gleaned at the hearing fail to
prove any evidence purporting to show the Agency's actions were pretext for retaliatory
animus. As a result, the Commission finds that Complainant was not retaliated against as
alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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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 (Nov. 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
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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

January 30, 2013
Date