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

Equal Employment Opportunity Commission

Feb 19, 2016

0120140847 (E.E.O.C. Feb. 19, 2016)

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

Alden G.,
Complainant,

v.

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

Appeal No. 0120140847

Hearing No. 520-2012-00420X

Agency No. NY-12-0091-SSA

DECISION

Complainant filed an appeal from the Agency’s November 25, 2013, final order concerning his
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and
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 Claims
Representative at the Agency’s East Harlem, New York District Office.

On February 6, 2012, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his race (Caucasian), sex (male), religion (Jewish), age
(60), and in reprisal for his prior protected EEO activity under Title VII and the ADEA when:

1. Complainant received a summary rating of “Successful Contribution” on his
Fiscal Year 2011 performance appraisal.
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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2. On November 10, 2011, Complainant was issued a letter of reprimand.

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 Equal Employment
Opportunity Commission 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 without a hearing on September 27, 2013.

The AJ found that no discrimination occurred. With regard to claim (1), the AJ noted that
Complainant’s overall performance rating of “Successful Contribution” reflected the following
element scores: Interpersonal Skills – Three, Participation – Three, Job Knowledge – Five, and
Business Results – Three. A rating of five signifies an “Outstanding Contribution” and a rating
of three reflects a “Successful Contribution.”

According to Complainant’s Supervisor, in early 2011, management received a complaint from a
client who witnessed Complainant being impolite to an elderly female at his window. The
Supervisor stated that in May 2011, she witnessed Complainant firmly speaking to a coworker
who asked him not to process a case that he was intent on processing. The Supervisor noted that
Complainant produced reports of contact with the names of claims representatives who had
committed errors and entered the names onto the electronic files. The Supervisor stated that this
was inappropriate and not conducive to a positive work environment. Additionally, the
Supervisor cited an incident in September 2011, when a complaint was received from a father of
an autistic child, when Complainant loudly asked the family that was being serviced by another
claims representative, if there was a way to stop the child from hitting the coloring book with a
pen.

The AJ found that Complainant failed to establish a prima facie case of discrimination under the
alleged bases as to claim (1). According to the AJ, Complainant did not identify any similarly
situated individuals outside her protected groups who received different treatment under the
Agency’s Performance Assessment and Communication System (PACS). The AJ further
observed that as to the claim of reprisal there is no evidence that Complainant’s position as a
Union Vice-President, which included serving as a designated EEO representative, was a factor
or consideration under the PACS.

Assuming arguendo that a prima facie case under the alleged bases had been set forth, the AJ
found that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s
PACS summary rating under the Interpersonal Skills element. The AJ noted that Complainant
needed to improve his interpersonal skills in the office. The AJ stated that Complainant offered
no more than differences of opinions, interpretations, observations and beliefs as to the office
incidents at issue.

With respect to claim (2), another Supervisor issued Complainant a letter of reprimand for his
conduct in an incident on September 27, 2011. The AJ noted that the Supervisor received a

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complaint from a client who is the father of an autistic child. The child was singing in the office.
The Supervisor stated in his affidavit that Complainant loudly asked the family that was being
serviced by another claims representative if there was a way to stop the child from hitting the
coloring book with a pen. The letter of reprimand characterized this behavior as Complainant
admonishing the family in a very insensitive way because he considered the child’s behavior
disruptive. The letter of reprimand asserted that the Supervisor spoke to Complainant privately
and asked him not to address the family in that manner. However, the Supervisor stated in the
letter of reprimand that shortly afterwards, Complainant approached the family and with his arms
crossed, asked the parents in Spanish why they were allowing the child to make noise with the
pen.

Complainant argued that he is treated as an outsider and is regarded by the public as a white,
male oppressor who lacks the support of management to defend him against prejudiced
customers. According to Complainant, the child made noise with her voice initially but started
hitting a book with a stick after his Supervisor spoke to him. Complainant denied that he
disobeyed an instruction not to speak to the parents. Complainant asserted that no such
instruction or oral counseling was given and therefore the letter of reprimand was unwarranted.

The AJ rejected Complainant’s contention that the office incidents were fabricated by the
Agency. The AJ stated that Complainant’s arguments consist of personal speculation, opinions
and beliefs involving collateral matters over semantics such as a management warning versus
counseling. The AJ discerned no evidence to suggest that the office incidents were related to
Complainant’s prior EEO activity.

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 summary judgment was inappropriate given that a
credibility dispute exists with regard to the letter of reprimand. Complainant notes that the letter
of reprimand accused him of discourteous behavior toward a visitor. Complainant challenges
this characterization of his behavior and he claims that others have engaged in similar conduct
without being reprimanded. Complainant reiterates the points that the AJ referenced in terms of
his challenge to the letter of reprimand. Complainant maintains that he has presented solid
evidence rather than mere speculation and opinion. According to Complainant, he was not
explicitly warned by the Supervisor not to speak to the parents again on September 27, 2011.
Complainant denies that he was insubordinate. Complainant also contends that the claims
representative who was working with the parents as well as another employee addressed the
parents regarding the child’s conduct and were not reprimanded.

In response, the Agency asserts that Complainant has waived an appeal of claim (1) since he
does not raise an argument as to his performance appraisal. With regard to claim (2), the Agency
notes that the claims representative working with the parents described Complainant’s tone as

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being aggressive throughout and the situation as very tense. The Agency states that the father
complained to both the Supervisor and the Assistant District Manager. According to the
Assistant District Manager, the father was very upset and offended, and said he came to the
Agency looking for assistance, not to be humiliated. The Agency states that the Assistant
District Director spoke to Complainant about the incident and that Complainant appeared to
minimize the seriousness of the incident when he remarked that the parents should be used to
people questioning the child’s behavior because the child is autistic.

The Agency asserts that Complainant was issued a letter of reprimand for discourteous behavior,
not insubordination. The Agency maintains that even if the Supervisor did not explicitly warn
Complainant not to speak to the parents again, Complainant offered no evidence to suggest that
his reprimand for discourteous behavior was pretext for discrimination. With respect to
Complainant’s contention that two of his coworkers also addressed the parents concerning the
child’s conduct when they advised the mother not to cover the child’s mouth, the Agency asserts
that it was Complainant’s conduct that precipitated a complaint from the family and not that of
the other employees.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An 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.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Agency explained as to claim (1) that Complainant was
issued an overall evaluation of “Successful Contribution” because he scored a three on three of

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his four job elements. In particular, Complainant received some negative feedback in the
element of Interpersonal Skills. We find that the Agency articulated a legitimate,
nondiscriminatory explanation as to its performance rating for Complainant.

With respect to claim (2), the Agency stated that Complainant was issued the letter of reprimand
based on the incident of September 27, 2011. The Agency explained that Complainant’s conduct
was discourteous toward the family and that Complainant inappropriately attempted to minimize
the seriousness of the incident. We find that the Agency presented a legitimate,
nondiscriminatory reason for the issuance of the letter of reprimand.

The Commission agrees with the AJ that Complainant failed to present evidence to rebut the
Agency's legitimate, non-discriminatory reasons for its actions.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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 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, 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

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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

February 19, 2016
Date