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

Equal Employment Opportunity Commission

May 9, 2013

0120114179 (E.E.O.C. May. 9, 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. 0120114179

Agency No. CHI-10-0971-SSA

DECISION

Complainant filed an appeal from the Agency’s December 5, 2011 Final Decision concerning
his 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s Final Decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Claims
Representative Trainee at the Agency’s Detroit 7 Mile Wyoming Field Office (373) facility in
Detroit, Michigan. On October 18, 2010, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of race (White) and disability (mental)
when:

On September 17, 2010, Complainant’s excepted appointment through the Federal
Career Intern Program (FCIP) was allowed to expire.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a Final Decision pursuant to 29
C.F.R. § 1614.110(b).

In its Decision, the Agency assumed for the sake of argument, that Complainant was an
individual with a disability. The Agency found that Complainant was hired on September 22,
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2008, as a Claims Representative Trainee (CRT) and that he was required to serve a two-year
probationary period. In April 2010, the Agency noted, Complainant began to suffer from an
anxiety disorder and he submitted to the Agency medical documentation excusing him from
work through May 2010. The Agency found that shortly before Complainant presented the
medical documentation, Complainant had been issued a Performance Improvement
Memorandum (PIM), designed to help Complainant improve his job performance. The Agency
found that Complainant received a notice on September 8, 2010, which notified him that based
upon his performance, his appointment as a CRT would be allowed to expire and that his
position would not be converted to a permanent one.

The Agency found that Complainant failed to show that the reasons articulated by his first and
second line supervisors (S1 and S2) were a pretext to mask discrimination. Specifically, the
Agency found that S1, Complainant’s immediate supervisor at the time of his removal,
documented Complainant’s failure to improve his performance to an acceptable level during his
probationary period as an FCIP intern. Specifically, S1 described Complainant’s performance
as failing to provide quality support to customers and found that Complainant failed to work
independently to find solutions. S1 stated that Complainant did not manage his time and
priorities to meet established goals. The Agency noted that the record demonstrated that
Complainant was repeatedly counseled regarding his performance deficiencies and that he had
been warned that if he did not improve he would not have his temporary position converted to
a permanent one.

The Agency considered Complainant’s claim that he was awarded a within grade increase in
his salary on the same day that he was told his position would be terminated. The Agency
found, however, that Complainant received the increase in his salary because he had filed a
grievance with the local union and the Agency granted the salary increase based solely on
Complainant’s length of service with the Agency from September 22, 2008, through September
27, 2010. The Agency acknowledged evidence from a Union official who believed that S2
spoke harshly to individuals with disabilities, but found no persuasive evidence that S1 or S2
were motivated by Complainant’s race or disability with respect to their actions to document
Complainant’s performance and ultimately not convert Complainant’s position at the expiration
of his probation.

The Agency found that Complainant presented no evidence other than his own belief that his
race or disability motivated the Agency’s decision to remove him from federal service. The
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. Complainant submitted no arguments on appeal.

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. (November 9, 1999) (explaining that the de novo
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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”).

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). He must generally 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. 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 Products, Inc., 530 U.S. 133 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995).

In the instant case, we assume, without so finding that Complainant is an individual with a
disability. We observe the statement of E1, an employee who, while serving a detail in August
2009, was Complainant’s immediate supervisor. E1, we note, confirms that in 2009,
Complainant experienced difficulties remembering recurring error messages and was unable to
meet interim deadlines she would establish for organizing his desk to facilitate his work.

We find, as did the Agency, the evidence demonstrates that Complainant was informed by
memorandum dated April 9, 2010, that he was failing to improve and progress in his ability to
perform the Claims Representative tasks assigned to him. We find, as did the Agency, that
Complainant was informed of: the specific errors he was observed making; the steps he was
expected to take to improve; and the assistance the Agency was prepared to provide to him.
The memorandum further warned Complainant that if he failed to improve as expected,
Complainant’s supervisor would consider a recommendation that Complainant’s appointment
be allowed to expire without conversion to a permanent position. The evidence shows that S2
became aware of Complainant’s disability thereafter in “April or May 2010” after Complainant
submitted medical documentation following his absence from the workplace in April 2010.
We find that Complainant’s performance deficiencies were documented prior to the time that
S1 and S2 were aware that Complainant had a disability.

Additionally, we note that Complainant continued from May 2010 to September 2010, to be
informed of his performance deficiencies and the consequences if he failed to show greater
improvement in the processing of claims. We find the evidence shows that more likely than
not that Complainant’s performance motivated S2’s decision to allow Complainant’s temporary
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appointment to expire. We find the evidence does not show that Complainant’s race or
disability motivated the Agency’s decision.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision, finding
no discrimination.

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”
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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

May 9, 2013
Date