Anthony G. Hill, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 6, 2009
0120073325 (E.E.O.C. Feb. 6, 2009)

0120073325

02-06-2009

Anthony G. Hill, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Anthony G. Hill,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120073325

Agency Nos. ATL05-0284-SSA

ATL05-0429-SSA

Hearing Nos. 150-2006-00122X

510-2006-00103X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's June 25, 2007 final order concerning his two

consolidated formal complaints of unlawful 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.

During the period at issue, complainant was employed as a Claims

Representative, GS-11, at the agency's Carrollwood, Florida field office.

Complainant alleged that the agency discriminated against him on the

bases of race (African-American), sex (male), and in reprisal for prior

EEO activity when1:

1. on or about April 14, 2005, he was issued a letter of reprimand for

disrespectful and unprofessional conduct;

2. the workload that was assigned to him was larger than the workload

assigned to his peers from March 2005 through September 2005;

3. he was not selected for the position of Technical Expert, GS-12,

advertised under Vacancy Announcement No. 541-2005; and

4. he was given a lesser performance award that was not commensurate

with his contribution.2

The record reflects that a hearing was held before an EEOC Administrative

Judge (AJ). After considering the testimony of the witnesses, the

AJ determined that complainant did not show by a preponderance of the

evidence that he was discriminated against on the bases of race, sex,

and retaliation.

Regarding claim 1, the AJ found complainant's second-level supervisor

(S2), the deciding official to issue complainant a Letter of Reprimand,

to be a credible witness at the hearing. Specifically, the AJ found

that S2 made the determination to discipline complainant was because

he circulated "the Great Emperor" email to all employees which caused

a disruption in the workplace. The AJ noted that complainant's "the

Great Emperor" email not only criticized S2 and other managers, but also

referred to other employees in a derogatory manner.

Regarding claim 2, the AJ found that the new Management Support

Specialist (M1) credibly testified that she made errors in constructing

the appointment calendar by assigning nine appointments to complainant.

M1 further testified that when the errors on the calendar were brought to

her attention by S2, she immediately reassigned four of complainant's

appointments to other Claims Representatives. With respect to

complainant's claim that he was given excessive workload assignments

during the summer of 2005, the AJ noted that complainant was given

a hardship transfer from the Carrollwood field office to the Valrico,

Florida field office. The AJ noted that S2 acknowledged that complainant

was assigned some of the duties of a Claim Representative. S2 testified,

however, that complainant was at the Valrico office on a hardship transfer

and was not required to perform many of the Claims Representative duties

he would otherwise have been responsible for while at the Carrollwood

office. The AJ noted that S2 stated that complainant was assigned and

had to process less work than his fellow workers who were physically

present at the Carrollwood Office. S2 stated that he and complainant's

former supervisor assigned additional workload to complainant because

the Operations Supervisor and District Manager of the Valrico office

requested more assignments for complainant.

Regarding claim 3, the AJ found that according to S2, he selected the

selectee for the position of Technical Expert because he was best

qualified. S2 stated that the Technical Expert's responsibilities

include going into the community and giving speeches; and taking claims

and completing other agency work. Specifically, S2 stated that the

selectee had over 20 years of experience with the agency while complainant

only had six years of experience. S2 also stated that the selectee

had established a network of community contacts as a public speaker.

Furthermore, S2 stated that while complainant was an acceptable candidate,

he did not have public speaking experience.

Regarding claim 4, the AJ found that according to S2, complainant

did not receive a Recognition of Contribution (ROC) award in May 2004

because he was not recommended for the award by his former supervisor;

and that complainant was not performing the full duties of his position

due to his medical condition. The AJ further found that S2 stated that

employees who receive ROC awards must be doing a full range of their

duties to be considered.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final order

because the Administrative Judge's ultimate finding, that unlawful

employment discrimination was not proven by a preponderance of the

evidence, is supported by the record.3

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 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 (S0408)

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 (Z1008)

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

February 6, 2009

__________________

Date

1 For ease of reference, the Commission has numbered complainant's claims

as claims 1 through 4.

2 The record reflects that during the January 29, 2007 hearing,

complainant withdrew his allegation that he was discrimination against

when he was not selected for the position of Operation Supervisor,

GS-12, advertised under Vacancy Announcement No. 488-2005. Therefore,

the AJ only addressed claims 1 - 4.

3 On appeal, complainant does not challenge the April 3, 2006 partial

dismissal issued by the agency regarding his allegation that he was

subjected to a hostile work environment when S2 made a remark that Claims

Representatives were "stupid" during a meeting. Therefore, we have not

addressed this issue in our decision.

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0120073325

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120073325