Richelle N., Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

May 19, 2017

0120152951 (E.E.O.C. May. 19, 2017)

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

Richelle N.,
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120152951

Agency No. CHI-14-0460-SSA

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated August 11,
2015, finding no discrimination concerning her 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. For the following reasons, we AFFIRM the Agency’s final decision finding no
discrimination.

BACKGROUND

In her complaint, filed on July 16, 2014, Complainant alleged discrimination based on race
(Black), sex (female), and age (over 40) when she was subjected to harassment in that:

(1) From January 15 through April 8, 2014, her progress relative to the Opportunity to
Performance Successfully (OPS) on which she was placed was not accurately recorded;

(2) In January and March of 2014, her request for Formal Decision Writing training was
denied; 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) On April 8 through May 14, 2014, her supervisor required her to send an email when she
arrived and a list of her accomplishments at the end of the workday while others were not
required to do so.

After completion of the investigation of the complaint, Complainant did not request a hearing
within the requisite time limit. The Agency then issued its final Agency decision concluding that
it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to
rebut.

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 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time, Complainant was employed as a
Paralegal, GS-12, Step 2, at the Agency’s Orland Park Office of Disability Adjudication and
Review (ODAR) in Orland Park, Illinois. The record indicates that in September 2010,
Complainant was promoted to her GS-12 Paralegal Analyst position.

Complainant’s group supervisor indicated that on January 14, 2014, Complainant was placed on
the OPS plan (for 120 days, from January 15, 2014, through May 14, 2014) because she was not
successfully meeting all of the standards and expectations of her job despite being provided with
formal assistance and specialized training. In the OPS notice, the supervisor indicated that
Complainant did not perform well on her 30-day performance improvement plan she had
completed; in 2012 and 2013, she only completed 3 to 14 decisions per month whereas the
ODAR’s average was 19 to 28 decisions per month; and her drafted decisions had many errors
and they were untimely on numerous occasions. The supervisor also indicated that during the
OPS plan, Complainant: was given a reduced workload; was assigned Mentor A to provide her
with assistance in her work; and watched 17 training videos concerning decision writing. The
supervisor indicated that she provided Complainant her work assignments and she relied on
Mentor A’s technical summary review of Complainant’s work during the OPS plan.

Mentor A stated that she was Complainant’s mentor during the OPS plan and reviewed the draft
decisions she completed. Specifically, Mentor A indicated that: Complainant was given a list of
video lessons concerning decision writing topics; her completed decisions had many errors,
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including problems with the legal sufficiency; Mentor A provided her with comments on each
draft Mentor A reviewed and noted the corrections needed; Mentor A’s summary reviews of
decisions completed by Complainant were given to the supervisor; Mentor A met with
Complainant to review the work she was doing and provided her and the supervisor a weekly
summary of the meeting and cases reviewed; and after Complainant’s decisions had gone
through several revisions and edits, they were submitted to judges. Mentor A denied she
harassed Complainant as alleged.

With regard to claim (2), the supervisor indicated that the Formal Decision Writing training was
provided to staff as a part of the initial training after being selected for a decision writing
position. Complainant acknowledged that she had the Formal Decision Writing training in 2009.
The supervisor stated that the training was not given to staff during the OPS plan.

With regard to claim (3), the supervisor indicated that Complainant was informed that during the
OPS plan, her work would be reviewed for quality and timeliness, and the requirement for her to
provide information about her arrival and accomplishments was given to facilitate the review of
her work. Specifically, the supervisor stated that she asked Complainant to provide the requested
information about her accomplishments when she arrived at work each day so she could assign
her work and establish a date and time to expect the work to be completed and to provide her
with a daily list of accomplishments to monitor her progress on the work assigned. The
supervisor acknowledged that no other staff members were required to provide notice of arrival
at work or a list of accomplishments because none were on an OPS plan. Complainant indicated
that she was later reassigned to a GS-8 Legal Technician position in February, 2015 (that
reassignment is not at issue in the instant complaint).

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. With regard to her claim of
harassment, we find that Complainant failed to establish the severity of the conduct in question
or that it was related to any protected basis of discrimination. After a review of the record, we
find that Complainant failed to show that there were any similarly situated employees not in her
protected groups who were treated differently under similar circumstances. Based on the
foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated
by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:
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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 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. The requests 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
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
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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

May 19, 2017
Date