Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 26, 2014

0120130306 (E.E.O.C. Aug. 26, 2014)

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

Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120130306

Hearing No. 510-2011-00605X

Agency No. ATL-11-0339-SSA

DECISION
On October 17, 2012, Complainant filed an appeal from the Agency’s September 5, 2012 final
order concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. § 621 et seq

. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact and
Service Representative at the Agency’s work facility in Bradenton, Florida. Complainant was
serving in a two-year excepted service appointment under the Agency’s Federal Career Intern
Program. An employee in the Program may be terminated at any time during the two-year
trial period for poor performance or misconduct. A Contact and Service Representative works
at the reception window and assists the public with their Social Security questions.

On March 8, 2011, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the basis of his age (53) when:

1. From November 30, 2010, to January 28, 2011, he was not provided adequate
training or the same training materials as his peers; and

2. On January 28, 2011, he was terminated.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s Motion for Summary Judgment
and issued a decision on August 21, 2012.

The AJ found that no age discrimination occurred. The AJ observed that a seasoned Contact
and Service Representative provided Complainant one on one training. This coworker stated
that Complainant exhibited problems grasping the concepts of the job and was not catching on
despite the one on one attention. On November 22, 2010, Complainant received an official
reprimand for his failure on November 1, 2010, to comply with the Agency’s policies and
procedures concerning the release of a Social Security number.

Complainant participated in a service representative training class in Melbourne, Florida
beginning on November 30, 2010. The AJ noted that it was a pilot course utilizing computers
rather than a traditional course with hard copies of the training materials. Complainant
contacted his Supervisor to request that she provide him the training materials. The Supervisor
advised Complainant to have his training instructor contact her. The AJ stated that five
students downloaded hard copies of the training materials before class and several other
students had their district offices mail hard copies to them.

The District Manager informed Complainant that he was not entitled to a training manual and
that instead he should use the class computer as all the material he needed was there.
Nonetheless, the training instructor spoke to Complainant’s Supervisor and subsequently
provided Complainant with a hard copy of the training material. Further, the training
instructor reviewed with Complainant many of the lessons that had been covered up to the time
he received the hard copy.

The coordinator of the training program stated that Complainant was doing very poorly in
class. She counseled Complainant several times about his performance and assigned the
training instructor to work one on one with him. In a mid-term evaluation, the training
instructor reported that in all of the applicable areas, Complainant had, at best, only partially
acquired the skill and still needed monitored practice. Complainant failed one of the two tests
up to that point. According to the training instructor, Complainant took limited notes or none
at all during most of the lessons. Complainant failed the final test he took during the training
course.

During winter recess for the class, an inquiry was conducted as to why Complainant had not
received his travel reimbursement checks. The District Manager learned that Complainant’s
funds were intercepted by the Department of the Treasury under its Treasury Offset Program.
The District Manager decided that Complainant would not resume the training course due to
concerns that Complainant would be unable to pay his travel expenses without an offset.

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Shortly after his return to Bradenton, Complainant was enrolled in a video SRT course and
given an additional mentor. The mentor reviewed with Complainant the recorded lesson from
the prior day and provided him one on one training, face-to-face, and through instant
messaging, email and the telephone. According to the mentor, Complainant experienced
continual problems grasping and applying concepts. She stated that Complainant passed two of
the three tests during the video SRT course.

The District Manager terminated Complainant on January 28, 2011. The grounds cited were
failure to perform the duties of his position to the satisfaction of the Agency and Complainant’s
unacceptable conduct. The termination letter noted deficiencies that Complainant had
demonstrated in terms of his knowledge, skills and abilities despite mentoring, study sessions
and training. The termination letter further noted that Complainant’s Federal funds had been
offset by the Department of the Treasury to pay a Federal debt and that he had failed to
respond truthfully on the Declaration of Federal Employment when asked if he was delinquent
on a Federal debt.

The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
With regard to Complainant’s claim that younger trainees at the Melbourne class were
provided with training materials and he was not, the Agency stated that the students were not
expected to utilize hard copies of the training materials. The Agency stated that students from
other district offices downloaded the material or had their district offices mail the information
to them. The Agency asserted that the training instructor provided Complainant with a printed
copy of the training material after he registered his complaint. As to Complainant’s
termination, the AJ cited the reasons enumerated by the Agency in the termination letter.

The AJ observed that Complainant argued that the training provided to him in Melbourne was
inadequate because he did not initially receive a hard copy of training materials. Complainant
stated that he was the oldest trainee in the class and that it was easier for his classmates to
adapt to the classroom format because they were more computer literate and had been out of
school less time than him. Complainant also contended that his training in Bradenton was
insufficient because his designated trainers did not have enough time to provide him with the
amount of attention he needed because they were performing other duties as well. With regard
to the Federal debt he allegedly owed, Complainant contended that he did not make a false
statement on the Declaration of Federal Employment and that he did not owe money to the
Federal government. The AJ noted that Complainant instead claimed that the paycheck
attachment was by a Department of Veterans Affairs hospital for medication.

With regard to Complainant’s various contentions, the AJ noted that as to the training in
Melbourne, the training coordinator stated that all of the training materials needed for the
course were readily available via computer and that each trainee had access to any materials
for class as all training course material could be downloaded before or after class. The AJ
noted that a hard copy of the materials was provided to Complainant and the training instructor
went over with Complainant many of the lessons that had been covered up to that point.
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As to the training in Bradenton, the AJ found that Complainant did not establish that he was
entitled to any additional training that was denied him. The AJ stated that Complainant did not
identify any other Contact and Service Representative who received more or additional training
than he did. With respect to the misconduct charge, the AJ rejected Complainant’s contention
that he did not make a false statement concerning not owing a Federal debt. The AJ reasoned
that even if Complainant was correct in his assertion, there is no independent evidence that
demonstrates the relevant Agency officials did not reasonably and in good faith believe
Complainant had engaged in the alleged misconduct.

In sum, the AJ found that Complainant could not dispute his deficient performance record in
terms of failing tests, evaluations, and counselings. The AJ observed that Complainant did not
identify any individual with a similar record of poor performance who was retained, while he
was not. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that he was meeting the Agency’s legitimate expectations in
light of his nearly two years of performance. Complainant further argues that the Agency’s
expectations were unreasonable. Complainant suggests that the Agency believed he was too
old to work with a computer based on the Agency’s statement that he failed to demonstrate a
capability to process or properly apply the skills or materials he received through his training.
Complainant maintains that he was not afforded sufficient opportunity to improve. According
to Complainant, he was denied adequate assistance and feedback during his employment.
Complainant argues that he was penalized too severely for his alleged debt to the Federal
government based on the Douglas factors. Complainant states that there was a good faith
misunderstanding, and he has no prior disciplinary record.

In response, the Agency asserts that it expended significant resources in an effort to ensure
Complainant was adequately trained. Specifically, the Agency states that it provided
Complainant mentors, one on one training, room and board to attend in-class training with
other newly hired Contact and Service Representatives, hard copies of the Melbourne training
materials, video training and on-the-job training. The Agency asserts that despite its training
efforts, Complainant failed to perform satisfactorily or otherwise meet expectations. The
Agency states that the training coordinator counseled Complainant several times about his
performance and that Complainant nevertheless passed only one of the three tests at the
Melbourne training. According to the Agency, Complainant had ample access to the training
materials via computer and he could have downloaded the material before or after class.

The Agency notes that Complainant received an official reprimand for his failure to follow
policies and procedures regarding the release of a Social Security number. The Agency asserts
that Complainant was delinquent on a bill to the Department of Veterans Affairs at the time
that he completed a Declaration of Federal Employment affirming he was not delinquent on
any Federal debt. According to the Agency, the Douglas factors do not apply to Complainant
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since he was a probationary employee who was terminated within two years of his Federal
Career Intern Program appointment.

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant set forth a prima facie case of age discrimination.
The Agency explained as to claim (1) that Complainant was provided significant resources to
assist him in his training. According to the Agency, Complainant was afforded mentors that
provided one on one training before and after class. The Agency asserted that extensive efforts
were made both in Bradenton and Melbourne to enable Complainant to develop the capability
to perform the duties of his position. The Agency stated that Complainant was provided hard
copies of the training materials in Melbourne even though the material was fully available on
the computer. As to Complainant’s termination at issue in claim (2), the Agency states that
Complainant was not meeting the legitimate expectations of his position as he was not grasping
the concepts of the job, he was failing course tests and he had not told the truth about not
owing a Federal debt. We find that the Agency articulated legitimate, nondiscriminatory
reasons for the actions at issue.

With regard to Complainant’s arguments to establish pretext, we discern little merit in
Complainant’s contention that he was afforded insufficient training. It is evident that the
Agency utilized an array of measures to assist Complainant in developing the skills he needed
to perform the Contact and Service Representative position. Nevertheless, Complainant was
unable to attain such capability and ultimately this resulted in his termination. Complainant
could have downloaded the training materials from the computer in Melbourne but he chose to
wait for hard copies to be provided to him. Complainant took little in the way of notes during
class. Complainant was generally unsuccessful on the tests that he took. It is apparent that
Complainant’s failure to achieve proficiency in his position was due more to his lack of
capability rather than a lack of assistance on the part of the Agency. Further, the record
indicates that Complainant owed a debt to the Department of Veterans Affairs and that
therefore Complainant was not truthful when he stated on the Declaration of Federal
Employment form that he was not delinquent on any Federal debt. We find that Complainant
failed to establish that the Agency’s reasons for its actions were pretext intended to hide
discriminatory intent.

CONCLUSION
For the reasons set forth above, we AFFIRM the Agency’s final order.

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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.

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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

Date
August 26, 2014