Deidra D.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

2019002176 (E.E.O.C. Sep. 30, 2019)

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

Deidra D.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 2019002176

Hearing No. 520-2016-00280X

Agency No. NY150534SSA

DECISION

On January 23, 2019, 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
December 11, 2018 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Benefits Authorizer
Trainee, 0901, GS-7, at the Agency’s Northeastern Program Service Center facility in Jamaica,
New York.

On July 28, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of national origin (Hispanic), sex (female), and reprisal for prior
protected EEO activity when: (1) she was given a poor Summary of Work/Audit Review; and (2)
the Agency forced her to resign (constructive discharge) based on her performance. She amended
her complaint to allege that the Agency retaliated against her when: (3) it gave her inappropriate
negative references to potential employers.

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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The Agency accepted the complaint and conducted an investigation, which produced the
following facts.2

The Agency hired Complainant as a Benefits Authorizer Trainee on September 15, 2014, subject
to a probationary period, including a requirement to satisfactorily complete the Agency’s training
course. In addition to instruction and exams, the course included casework breaks, during which
trainees were expected to apply what they learned while working independently on live cases,
under the guidance of mentors, who would then use a Summary of Work Audit/Review
document (Summary Audit) to report the trainee’s performance.

Complainant was in the training course from her start date until her resignation on April 22,
2015, during which time she received four Summary Audits, two from each of two mentors
(Mentor1 and Mentor2). Complainant alleged that the two Summary Audits generated by one of
the mentors, Mentor2, were full of inaccuracies.

Mentor1 attested that, at the onset of the mentoring period, Complainant struggled with
processing cases and her performance was up and down during the time she mentored her.

Mentor2 attested that, generally, Complainant had difficulty understanding the basic concepts
related to the position and she tried to help her have a better understanding. Complainant made
errors, sometimes repetitively, in multiple technical areas. Complainant did not seem to be
progressing and was not able to apply basic concepts to the cases she was assigned to work.

The Module Manager (MGR1) attested that based on the Summary Audits, it was determined
that Complainant was not doing well. However, Complainant’s dispute did not pertain to the
processing of cases but was mostly related to Mentor2’s style. MGR1 also explained that
Mentor2 began mentoring Complainant after the first two Summary Audits, which showed that
Complainant’s accuracy was decreasing as the case complexity was increasing. The third and
fourth reports, which were prepared by Mentor2, indicated Complainant was not processing
cases accurately and, on most cases, Complainant made basic errors, such as figuring out the
correct rates to be paid and applying basic procedures to a specific workload.

The Assistant Module Manager (MGR2) also attested that Complainant struggled with applying
basic concepts and making final determinations in the full range of the job. She attested that the
instructors provided similar feedback to her based on their observations of Complainant’s overall
performance in the classroom and on her exams.

An instructor (Instructor1) attested that Complainant’s test scores were below average and the
lowest among all the trainees in her class. She attested that Complainant did not appear to have a
good understanding of the basic concepts, her organizational skills were not good, and she did
not seem to retain the information or have a good basic understanding of the concepts.

2 The Report of Investigation does not address claim (3).
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Instructor1 attested that, overall, Complainant’s performance was below average in comparison
to her classmates.

Complainant also alleged that, shortly after first meeting Mentor2 on March 27, 2015, Mentor2
repeatedly questioned her about her national origin. She also alleged that Mentor2 failed to
provide her with adequate mentoring, refused to answer her questions, and gave more guidance
to two white male trainees, one of whom was not assigned to her.

Mentor2 denied asking Complainant about her national origin. She attested that she probably
spent more time explaining concepts to Complainant than other trainees.

MGR1 attested that, based on his observation, Mentor2 spent more time with Complainant than
she did her other assigned trainee.

MGR2 indicated Mentor2 did not spend more time with other trainees.

Complainant initiated her request for a new mentor on April 1, 2015. She subsequently contacted
management and Human Resources, generally alleging that Mentor2 was not helpful and did not
answer her questions. On April 8, 2015, MGR1 intervened and explained to Complainant and
Mentor2 their respective roles, and each agreed to perform accordingly.

Complainant alleged that, on April 13, 2015, Mentor2 called her into another room to discuss her
evaluation and threatened to fail her because she heard about Complainant’s complaints to
management about her and her request for a new mentor.

Mentor2 denied knowing Complainant had requested a different mentor and denied threatening
her as alleged.

On April 14, 2015, Complainant met with her supervisors to review the first Summary Audit of
Complainant’s work. The supervisors told Complainant she needed to show significant
improvement in her work and should consider whether the position was suitable for her.

On April 15, 2015, Complainant first contacted an EEO Counselor regarding the instant
complaint.

On April 22, 2015, Complainant met with her supervisors to discuss her performance.
Complainant alleged that her supervisors threatened to fire her, if she did not resign.
Complainant gave them a resignation letter that she had previously prepared. She alleged that her
supervisors told her that they could not accept it as it was written and asked that she rewrite it.
Complainant rewrote it and they accepted it, effective that date.

MGR1 attested that Complainant handed management a resignation letter at the outset of the
meeting.
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The letter contained inaccurate information, stating that she was resigning because the Agency
wanted her to resign. Management asked Complainant to rewrite the letter because it was her
decision to resign. MGR1 attested that Complainant was not forced to resign.

MGR2 attested that, prior to the meeting, Complainant had been advised that management
needed to see significant improvement in her work overall. Complainant did not show
improvement and they discussed these facts during the meeting. Complainant stated, “This is not
going anywhere,” and handed them a resignation letter. MGR2 attested that Complainant was not
forced to resign, nor was she terminated.

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 timely requested a hearing.

During the pre-hearing phase, Complainant added claim (3) as an amendment to her complaint.
She alleged that, prior to her resignation, Instructor1 offered to be a reference for her and gave
Complainant her contact information. In October 2015, Complainant hired a reference checking
service and found that Instructor1 was not providing a positive reference. Complainant claims
that she has been unable to get another job due to these negative references. Complainant alleged
Instructor1 gave the negative reference in retaliation for the instant EEO complaint.

After both parties submitted motions for a decision without a hearing, the AJ assigned to the case
issued a decision by summary judgment in favor of the Agency on November 5, 2018. 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.

The instant appeal followed. On appeal, Complainant alleges there were numerous errors in the
AJ’s list of undisputed material facts. She argues that the validity of her grades was an issue of
material fact because her supervisors and instructors altered and omitted grades on her exams
which rendered meritless the Agency’s claim that she was let go due to non-performance.

Complainant also reiterates her allegations relating to Mentor2’s questioning her about her
ethnicity and national origin; white male peers being treated more favorably during the training
and mentoring process; being forced to resign; and receiving negative references from
Instructor1. She also alleges that her working conditions were unreasonable and arduous and she
was subjected to harassment, the training team had no record of unconscious bias training, and
the mentors chosen were not selected in accordance with the Pathways program agreement.

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.
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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.

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. While Complainant
has, in a very general sense, asserted that facts are in dispute, she has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.

Complainant has alleged that the Agency treated her disparately when Mentor2 gave her a poor
Summary Audit, the Agency forced her to resign for non-performance, and Instructor1 gave her
inappropriate negative references to potential employers. A claim of disparate treatment is
examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567
(1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the
agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact
finder by a preponderance of the evidence that the agency acted on the basis of a prohibited
reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, her claims
ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. With respect to the Summary Audit, the Agency explained that the Summary Audit
reflected the fact that Complainant was having difficulty understanding the basic concepts
related to the job and was making basic errors. Instructors provided similar feedback regarding
Complainant’s progress and indicated Complainant’s test scores were below average and the
lowest among the trainees in her class.
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We acknowledge that Complainant alleges that her test scores were altered or omitted. However,
the Agency’s management, instructors, and mentors all attested to Complainant’s poor
performance and the record does not establish the exam scores were an inaccurate reflection of
her performance. Beyond her bare assertions, there is no evidence to support her claim that
Mentor2 questioned her about her national origin. Moreover, all management witnesses, not just
Mentor2, testified to Complainant’s training and work performance deficiencies. Therefore, we
find that, although Complainant has alleged discrimination and retaliatory animus, she has not
established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons
articulated by the Agency were a pretext for unlawful discrimination or motivated by some
unlawful discriminatory animus with respect to this claim.

In alleging that the Agency forced her to resign, Complainant is alleging that she was
constructively discharged. A discriminatory constructive discharge occurs when an agency,
motivated by discriminatory animus, creates working conditions that are so difficult, unpleasant,
or intolerable that a reasonable person in the complainant's position would feel compelled to
resign. Byron E. v. U.S. Postal Serv., EEOC Appeal No. 0120143037 (Sept. 1, 2016). The
Commission has adopted a three-pronged test for establishing a constructive discharge. A
complainant must show that: (1) a reasonable person in his position would have found the
working conditions intolerable; (2) conduct which constituted prohibited discriminatory
treatment created the intolerable working conditions; and (3) the complainant's involuntary
resignation result from the intolerable working conditions. Ileana R. v. Dep’t. of Homeland Sec.,
EEOC Appeal No. 0120120394 (Nov. 24. 2015). However, even where actions which precipitate
an individual's retirement are discriminatory or retaliatory, this does not automatically establish
that the subsequent resignation or retirement constituted constructive discharge. Olsen v. Dep't of
Def., EEOC Request No. 05A10104 (Mar. 22, 2001).

Complainant essentially argues that she resigned because she otherwise would have been
terminated due to non-performance. As discussed above, we find the the Agency had legitimate,
nondiscriminatory reasons for its actions in giving Complainant poor Summary Audits and other
performance assessments. Furthermore, Complainant was on probation and, had she failed to
demonstrate satisfactory progress during the training period, she was subject to dismissal. We
note that Complainant has alleged that the conditions were intolerable in various ways. However,
she has failed to show by a preponderance of the evidence that she was discriminated against on
the basis of national origin or sex or in reprisal, with respect to the working conditions at issue.
She has not met her burden to establish that the Agency was motivated by a discriminatory
animus towards creating such working conditions as would be so difficult, unpleasant, or
intolerable that a reasonable person in her position would feel compelled to resign.

Finally, we find that Complainant’s claim that the Agency should be liable for Instructor1’s
allegedly providing negative references fails as well. To the extent Instructor1 provided negative
references, we find Complainant’s poor performance, as discussed above, was a legitimate, non-
retaliatory reason for the negative reference.

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To the extent Instructor1 may have erred in the details surrounding various issues not related to
Complainant’s performance, such as Complainant’s report of loss relating to her personal
property while at the Agency’s facility, the record does not establish that Instructor1 acted in
retaliation for Complainant’s EEO activity. Therefore, we find that, although Complainant has
alleged discrimination and a retaliatory animus with respect to these references, she has not
established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons
articulated by the Agency were a pretext for unlawful discrimination or motivated by some
unlawful discriminatory animus.

We also note that, to the extent Complainant raises new claims of alleged discrimination or
harassment, these claims are not currently before the Commission.

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

September 30, 2019
Date