Michael V.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 12, 2019

2019001551 (E.E.O.C. Sep. 12, 2019)

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

Michael V.,1
Complainant,

v.

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

Appeal No. 2019001551

Agency No. HQ-18-0560

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 17,
2018 final decision concerning an equal employment opportunity (EEO) complaint claiming
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Social Insurance Specialist, GS-13, at the
Agency’s Office of Legislative and Congressional Affairs, Retirement Survivor's Benefits
Section in Baltimore, Maryland.

On June 15, 2018, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him based on race (white), national origin (Soviet Union), sex (male), and
age (51) when:

1. on March 20, 2018, Complainant was placed on a Performance Assistance
Program (“PAP”);

2. on March 20, 2018, Complainant’s telework privileges were revoked; and

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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3. April 12, 2018, Complainant was placed on an Opportunity to Perform
Successfully (“OPS”) plan.

After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant did not respond.

On December 17, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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
Construction 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 Texas Department of
Community 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
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions.

Regarding claim 1, Complainant’s first-level supervisor (“S1”) testified that she placed
Complainant on a PAP “based on the quality of his work.” Specifically, S1 explained that
Complainant’s writing did not meet her expectations and Complainant had difficulty analyzing
information and applying the information in his position.
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S1 further explained that Complainant struggled with assignments if he was not given “step-by-
step instructions” and Complainant had difficulty recognizing the differences in assignments. S1
stated that she noticed these deficiencies after she began reviewing Complainant’s work product
in late 2017. Because Complainant failed to show signs of improvement after S1 provided him
written and verbal assistance and a mentor, S1 explained that she placed Complainant on a PAP.
S1 clarified that Complainant’s prior 2017 performance evaluation was not a reflection of his
current performance because the prior evaluation occurred the year before.2

The record includes a March 2018 letter from S1 to Complainant informing Complainant that he
would be placed on a PAP for at least 30 days, effective March 20, 2018. The letter indicates
that S1 determined that Complainant had difficulty with writing and analyzing legislation,
assignments, and other documents. The letter states that Complainant’s work products are “often
unclear and rambling” and contain grammatical errors. The letter further states that Complainant
requires “several attempts and significant guidance” to understand what the legislative language
means, and Complainant has “trouble seeing relationships between issues.” S1 also indicates in
the letter that Complainant has difficulty “completing assignments according to supervisory
expectations” and Complainant has difficulty informing S1 when his response to assignments
will be delayed. To aid Complainant’s improvement, S1 states in the letter that she would
assign Complainant a mentor during the period he is on the PAP and she would schedule to meet
with Complainant every Thursday to discuss his progress, provide feedback, and address
questions.

Regarding claim 2, S1 stated that Complainant’s telework privileges were revoked because he
was placed on a PAP. S1 explained that per the union contract and Agency policy, telework
privileges are removed for employees placed on a PAP.

A copy of a March 2018 Letter from S1 to Complainant indicates that Complainant’s telework
privileges were terminated, effective March 20, 2018. The letter states that Complainant no
longer met the eligibility conditions for participation in the telework program as outlined in
AFGE 2012 National Agreement, Article 1, Section 3 and Section 10. The letter explains that
Section 3(A) requires that an employee not be under a PAP or OSP plan in order to participate in
the telework program.

Regarding claim 3, S1 testified that she placed Complainant on an OPS plan because
Complainant “did not show significant and sustained improvement in writing, analyzing, and
following directions while on the PAP.” S1 further explained that the OPS plan was the “next
step” in the performance improvement procedures.

2 Complainant testified that while S1 was his supervisor of record, his work was directly
reviewed by another supervisor (“S2”) from mid-June 2017 until mid-February 2018.
Complainant further testified that S1 began directly reviewing his work in mid-February 2018
when S2 left his unit.
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The March 2018 PAP letter indicates that S1 informed Complainant that he would be placed on
an OPS plan if his performance did not improve while on a PAP.

The record includes an April 24, 2018 letter from S1 to Complainant informing Complainant that
he would be placed on an OSP plan, effective April 25, 2018, for a period of at least 120 days.
The letter indicated that despite having a mentor, weekly meetings with S1, and despite
completing 8 classes on grammar and business writing, Complainant’s writing was “still not at
the successful level” and Complainant was “not performing at an acceptable level in the elements
of Job Knowledge and Achieves Business Results.”

On July 19, 2018, S1 issued Complainant another letter, in accordance with Executive Order
13839, informing Complainant he would be placed on an OPS plan effective July 19, 2018 for a
period of at least 30 days and that this OPS plan replaces and supersedes the OPS plan issued on
April 24, 2018.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful
discrimination based on Complainant’s on race, national origin, sex, or age.

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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.
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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.
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 12, 2019
Date