Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120132084 Hearing No. 420-2012-00237X Agency No. ATL-12-0217-SSA DECISION On May 3, 2013, Complainant filed a timely appeal from the Agency's April 4, 2013 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Agency adopted the decision of the EEOC Administrative Judge (AJ) who granted summary judgment and found no discrimination. The Commission AFFIRMS. Complainant worked for the Agency as a GS-11 Claims Authorizer (CA), Process Module 12, Southeastern Program Service Center in Birmingham, Alabama at the time of his complaint. He alleged that the Agency discriminated against him on the bases of age (49), race (Hispanic)1, mental and physical disability2 and reprisal for prior EEO activity when on November 18, 2011, the Agency discriminated against him when he received an overall Performance Assessment and Communications Systems (PACS) appraisal of 3 which was lower than his prior PACS ratings for the previous two years.3 After an investigation, Complainant requested a hearing. The Administrative Judge (AJ) granted summary judgment in favor of the Agency over the objection of Complainant. AJ's Decision In concluding that the Agency had not discriminated against Complainant, the AJ first determined that Complainant failed to establish a prima facie case of national origin, age, or disability discrimination because he did not show that he was treated differently from similarly situated employees outside his protected class and, also, that he had presented no evidence from which an inference of discrimination could be drawn. The AJ alternatively concluded that even if Complainant had established a prima facie case of age, national origin, and disability discrimination, the Agency had articulated a legitimate, nondiscriminatory reason for its action, i.e., his work was not outstanding in the participation category. Specifically, Complainant received a level 3 rating because he did not meet the rating of 5, an outstanding rating, on a sustained basis during the rating period. Complainant did not consistently volunteer for additional work or make suggestions to facilitate changes which were the kind of activities an employee had to perform on a sustained basis to be rated at a 5. The AJ determined that although Complainant contended that he had consistently received 5 ratings in the participation category in 2008, 2009 and 2010, each year rating stood on its own and did not carry over into a future appraisal. Regarding animus, the AJ rejected the "cat's paw" theory advanced by Complainant that his supervisor (S1) was unlawfully influenced by the Operations Manager when she rated Complainant at a 3 in the participation category. The AJ found that even if the Operations Manager influenced S1's decision, there was no evidence that discriminatory animus motivated him. The AJ determined that Complainant's claim that the Operations Manager directed a 3 rating based on information supplied by the deceased Assistant Module Manager (AMM), Complainant's supervisor prior to S1's supervision of him, was speculative and, without more, insufficient to show pretext. The AJ acknowledged that although Complainant had engaged in EEO activity in 2011, he had not shown that the rating was the result of unlawful animus. Addressing Complainant's claim that the 3 rating was the result of his having requested a reasonable accommodation, the AJ determined that Complainant had not shown any nexus between any accommodation request and the rating which he received. CONTENTIONS ON APPEAL Complainant basically recounts the claims contained in his complaint and investigatory statements. He also contends that his supervisor violated provisions of the Personnel Policy Manual. He asserts that Module 12 was located in an area with "a heavy Hispanic population" and that prior PACS evaluations from other supervisors acknowledged the contributions of bilingual personnel, such as he, in the PACS element of participation. S1 did not do so. The Agency contends that Complainant failed to show by a preponderance of the evidence that the Agency discriminated against him. The Agency noted that Complainant had failed to establish a prima facie case based on age, national origin or disability because he was unable to show others outside of his protected groups who were similarly situated were treated more favorably than he was and, also, because he failed to establish a causal connection between his alleged disability and the Agency's actions. The Agency also contends that Complainant cannot establish a prima facie case of reprisal because he cannot satisfy the causation requirement. The Agency asserts also that it had articulated legitimate, nondiscriminatory reasons for Complainant's 3 rating in the participation category. ANALYSIS AND FINDINGS Upon a required de novo review of the record, we find that the grant of summary judgment was proper. 29 C.F.R. § 1614.405(a). 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). We recognize that summary judgment is not a trial of issues of fact but is a proceeding to determine if genuine issues of material fact exist. A disputed 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. Complainant has not identified genuine material facts in dispute which could alter the adjudication of his claim and therefore warrant a hearing. In addition, the record was adequately developed and no findings of credibility need to be made. The AJ concluded that Complainant failed to establish a prima facie case on the bases of age, national origin, and disability. To establish a prima facie case of discrimination based on these bases, Complainant must demonstrate that (1) he was a member of a protected class; (2) he was subjected to an adverse employment action concerning a term, condition, or privilege of employment; (3) he was treated less favorably than similarly situated employees outside his protected class, and (4) a causal relationship existed between his membership in the protected class and the adverse action. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973). Complainant may also set forth evidence of acts from which, if otherwise unexplained, an inference of discrimination can be drawn. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579-580 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. We agree with the AJ that Complainant failed to establish a prima facie case on the bases of age, national origin, and disability.4 One of the elements of a prima facie case is to show that others similarly situated were treated more favorably than he was. Complainant himself stated in his affidavit that of seven CAs, he perceived that five were under the age of 40, five were over age 40, three were African Americans, three were Hispanic and one was Caucasian. Complainant has failed to show, and the record also does not establish, that other CAs, not in his protected groups, received a rating higher than he did in the disputed category. S1 gave all CAs in Module 12, including Complainant, a level 3 rating in the participation category. Therefore, Complainant was not treated any differently from the other CAs. Even were we to assume, as did the AJ, that Complainant established a prima facie case of age, national origin and disability discrimination, the Agency articulated a legitimate, nondiscriminatory reason for its action for which Complainant has failed to show that unlawful discrimination was the real reason for the rating that Complainant received. 5 In other words, because the Agency has articulated a reason, Complainant must show that the Agency's reason was pretextual, not the true reason and that its action was influenced by impermissible criteria. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The PACS guidelines, contained in the record, set forth specific factors to be used in determining what performance at the outstanding or 5 level should look like and, also, what the performance at a 3 level would look like. Being able to observe and assess Complainant's performance, it was S1's call that Complainant was not performing at an outstanding level in the participation category. Federal anti-discrimination law "is not a vehicle for second-guessing of employment decisions." Saenz v. Dep't of the Navy, EEOC Request No. 05950927 (Jan. 9, 1998). The Commission has consistently held that we will not substitute our judgment for that of the Agency unless other facts suggest that proscribed considerations entered into the process which, in the instant case, the record does not support. Complainant previously received a higher rating in the participation category. Another CA stated in his affidavit that he believed Complainant should have received a 5. Without more, S1's departure from giving Complainant a higher rating as he had received previously is not proven to be discriminatory. Not only was S1 newly supervising Complainant at the first level but, also, she was not required to rubber stamp the rating of a previous supervisor. She could evaluate Complainant based on her own observations. The Commission also notes that the Labor Management and Employee Relations Specialist (LMERS) stated that the labor contract indicated that each performance appraisal was "stand alone" and performance was evaluated anew annually from October 1 to September 30. While evaluating an employee may not be an exact or perfect science, the Agency had identified specific factors to be used in rating Complainant. The LMERS also stated that the Labor Management and Employee Relations Team provided recurring instructions and training on PACS guidelines. Having applied the factors, S1 determined that Complainant's performance in the participation category did not merit a 5. Complainant disagreed with S1's assessment and concluded that he frequently and on a sustained basis met the 5 rating. We note that Complainant did not provide any self-assessment highlighting his contributions and accomplishments during the performance year. We recognize that performance is not inherently static and can decline or improve. Also, S1 could be wrong about Complainant's performance or too hard but the real question is whether the articulated reason was pretextual to mask unlawful discrimination. We next address reprisal as a basis. In a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The rating period ran from October 1, 2010 through September 30, 2011. Complainant was supervised by AMM from October 2010 to sometime in May 2011, when the AMM apparently died. At the time of AMM's passing, S1 was Complainant's second level supervisor and his third level supervisor was the Operations Manager. After AMM's passing, S1 supervised Complainant directly from May to June 2011 and again from mid-August 2011 through mid-November 2011. S1 was the rating official and the Operations Manager was the reviewing official. S1 did not give Complainant the optimal rating of 5. There is no dispute that S1 and the Operations Manager were aware of Complainant's prior protected activity, although it was the deceased AMM and not S1 who was named in Complainant's prior complaint. Accordingly, an initial inference of discrimination can be drawn regarding reprisal discrimination. The Agency had to then articulate a legitimate reason for its action. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-507 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). The Agency has, as we have set forth earlier, done so. Complainant asserted under a "cat's paw" theory that S1 was directed to lower his rating, or was influenced by, by the Operations Manager who was aware of Complainant's prior protected activity. He also asserted that the Operations Manager engaged in discriminatory conduct based on information previously submitted to him by the deceased AMM. When an individual has "acted as a conduit of a [supervisor's] prejudice - his cat's paw - innocence of its members would not spare the company from liability." Stitz v. City of Eureka Springs, Mayor, and City Council, Appeal No. 1199002, Charge Nos. 251-97-0011, 251-97-0920 (June 28, 2001) citing Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (noting that supervisor did not fire plaintiff; rather the Career Path Committee did, but the employer was still liable because the committee functioned as the supervisor's cat's paw). S1 was the evaluating official. The Operations Manager was the approving official for all ratings in his division as a division manager. S1 reported to the Operations Manager. The Operations Manager was in the deceased AMM's chain of supervision and the deceased AMM was named as a discriminating official in a prior complaint. We find that other than speculation that the Operations Manager was influenced by the deceased AMM and the Operations Manager influenced S1, Complainant has proffered no evidence of this influence. Also, there is no competent evidence that S1 was disposed to provide a rating other than one that was provided in an objective and nondiscriminatory manner. There is no persuasive evidence that S1 acted as a conduit of discrimination; that she lowered Complainant's ratings after any discussions with the Operations Manager; or that it was discriminatory animus that motivated the Operations Manager. Complainant cannot establish pretext where he offers nothing more than his own speculation and allegations to defeat the Agency's legitimate, nondiscriminatory reasons for its decisions. Speculation and unsupported allegations are insufficient to create a genuine issue of material fact regarding the Agency's reasons. Even assuming that the Operations Manager incorrectly stated that he had not discussed the rating with S1, we find no competent evidence that the Operations Manager harbored discriminatory animus or that S1 was unlawfully influenced by the Operations Manager under a cat's paw theory. In sum, construing the evidence in the light most favorable to Complainant and having considered arguments not specifically referenced, Complainant has failed to show by a preponderance of the evidence that the Agency discriminated against him. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant has failed to carry this burden. CONCLUSION The Agency's finding of no discrimination is AFFIRMED. 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" 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 April 24, 2015 __________________ Date 1 "Hispanic" is not a racial classification but is a national origin designation. See EEOC, Questions and Answers about Race and Color Discrimination in Employment (rev. Apr. 19, 2006). Frias v. Dep't of Justice, EEOC Appeal No. 0120091866 (Sept. 10, 2010). Nonetheless, identifying his race as "Hispanic" does not affect the disposition of this appeal. 2 Complainant identified, and the record contains, a listing of several physical and mental conditions. 3 Complainant's real dispute lies with the rating of 3 that he received in the participation category of his overall assessment. 4 For purposes of analysis only, the Commission will assume that Complainant is an individual with a disability. 5 The prima facie inquiry may be dispensed with where the agency has articulated legitimate, nondiscriminatory reasons for its actions. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17(1983). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132084 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132084