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