Sara S.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

0120182007 (E.E.O.C. Sep. 11, 2019)

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

Sara S.,1
Complainant,

v.

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

Appeal No. 0120182007
Agency No. KC-17-0641-SSA

DECISION

On May 30, 2018, 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
April 25, 2018, final decision 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 Agency’s final decision (FAD) which determined that Complainant did not demonstrate that
she was subjected to discrimination as she alleged.

ISSUE PRESENTED

The issue presented is whether the FAD erred in finding that Complainant was not subjected to
discrimination when she was terminated after she failed to improve during her Opportunity to
Perform Successfully (OPS) period.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Claims Specialist,
(CS), at the Agency’s Union Field Office in Union, Missouri. Complainant received an
Unsatisfactory performance rating. Her supervisor (S1) indicated that Complainant had difficulty
completing her work tasks, she had accrued a large backlog of aged work tasks despite
management’s efforts to assist her.

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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Consequently, she was placed on an OPS period, and was ultimately given 120 days to improve.
When management determined that she had not improved during the OPS period, she was issued
a termination notice on September 28, 2017.

Complainant maintained that she was placed under scrutiny regarding her work performance after
she gave a statement in another employee’s EEO complaint. She indicated that she shared how
poorly the office was managed and how there was gross mismanagement. Complainant indicated
that she believed reprisal was involved in her termination because there were other employees in
her office who also had large amounts of work that they were behind on and employees who made
similar errors but were not put on an OPS. Complainant indicated that management failed to
provide her with supervisory expectations for her to successfully complete the OPS.

On September 5, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her because of reprisal for her participation in protected EEO activity when
on May 16, 2017, she received a low rating on her performance appraisal following her OPS
period.

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. 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). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant, among other things, reiterates her claim that management initiated the
OPS plan and eventually removed her from her position in retaliation for her providing a statement
in July 2016 as part of a coworker’s EEO investigation. Complainant claims that it was
“suspiciously close timing” between her providing the statement as part of the 2016 investigation
in July 2016, and the beginning of her performance improvement plan, which was initiated before
the OPS in November 2016—approximately four months later. Complainant also states that her
job required her to complete a large backlog, which she could not complete without being provided
additional time.

Further, she asserts that some of her coworkers also made mistakes that were similar to hers, but
they were not put on OPS. Furthermore, Complainant maintains that management failed to meet
with her as often as she believed they should have to discuss her performance during the OPS
period. She also indicates that management’s expectations for her work were inadequately
expressed to her before and during her OPS period. Complainant also asserts that only one of her
six witnesses were interviewed for the report of investigation.

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In response, the Agency contends, among other things, that the critical elements and performance
expectations of the CS position were stated in the Performance Assessment and Communication
System (PACS) plan and was provided to every CS at the beginning of each appraisal year. If an
employee was found to be unsuccessful, they were put on an OPS. If an employee’s performance
did not improve to a successful level by the end of the OPS period, management would issue a
“Level 1” or “Not Successful” rating for the critical element in which the employee had not
demonstrated successful performance during the OPS period. In that instance, management would
then initiate a performance-based action to either reassign, demote, or remove the employee from
federal service.

Based on Complainant’s failure to demonstrate successful performance in a critical element of her
position, she was issued a Proposal to Remove her from her CS position. The decision to remove
her was supported by more than 500 pages of attachments, which demonstrated her failure to
perform successfully in the critical element of “Achieves Business Results.” Finally, the Agency
maintained that even Complainant admitted that the timeliness of her work was a longstanding
performance concern.

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. (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”).

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

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Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assumed, arguendo, that Complainant
established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory
reasons for its actions, namely that Complainant was terminated for unacceptable performance.
The record reveals that Complainant had a long-standing problem with completing her work load.
Moreover, we note that Complainant did not deny that she had problems keeping up with her work
load even after returning from extended leave and finding that her work had completed by others.
Further, while Complainant maintained that other employees had backlogs and made mistakes, she
did not show that they were similarly situated to her as she did not show that they had longstanding
issues with performance like she did. We find that Complainant did not show that the Agency’s
reasons were pretext for discrimination or that discriminatory animus was involved in the
Agency’s decision.

Further, we find that other than Complainant’s conclusory statements on appeal she has not
provided any evidence which suggests that discrimination was involved in this matter. In fact,
contrary to Complainant’s argument that she received no support for her to successfully complete
the OPS, the record reveals that Complainant met with her supervisor on March 7, April 1, May
3, and May 16, 2017, priority items were given deadlines, she was assigned a mentor, and training
related to her improvement with her backlog was approved. We find that Complainant has not
demonstrated that she was subjected to discrimination.2

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not show that
she was subjected to discrimination.

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.

2 With regard to Complainant’s assertion that only one of her witnesses were questioned during
the investigation, we note that she was given the opportunity to have her complaint brought before
an EEOC Administrative Judge at a hearing. Complainant, had she taken advantage of this
opportunity, would have been able to engage in discovery, cross-exam Agency witnesses, and
provide a list of potential witnesses to the Administrative Judge. As noted above, however,
Complainant did not elect to have a hearing.
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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.
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.

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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 11, 2019
Date