01990138
04-10-2000
Donald Koza, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Donald Koza v. Social Security Administration
01990138
April 10, 2000
Donald Koza, )
Complainant, )
) Appeal No. 01990138
v. ) Agency No. 970132SSA
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
concerning his complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges he was discriminated against when the agency issued
him a letter of reprimand. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the FAD.
ISSUE PRESENTED
The issue on appeal is whether the agency discriminated against the
complainant on the above basis of reprisal.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a service representative, at the agency's Teleservice Center,
Jersey City, New Jersey facility. Complainant alleged that the agency
discriminated against him following an incident that occurred on July
16, 1996. On this date, he accidentally stepped on the tail of a
seeing-eye dog. He was attempting to sign-in at work when a visually
impaired co-worker (Co-worker) and her seeing-eye dog approached the area.
Co-worker bumped into him, and he tried to pass by her and leave the area.
He had enough room to pass Co-worker, but he stepped on the dog's tail.
He alleged that he apologized to the dog but did not apologize to
Co-worker. The complainant also alleges that there were no witnesses
in the area, but he reported the incident to the Supervisory Coordinator
for the Visually Handicapped (Coordinator).
The agency began an investigation because Co-worker was very upset
over the incident. The agency identified two witnesses: Co-worker and
Witness, who is not visually impaired. The agency interviewed Co-worker,
Witness, Coordinator, and complainant. Following this investigation,
the agency issued a letter of reprimand to complainant on August 6, 1996.
Believing he was a victim of discrimination, complainant sought EEO
counseling, and subsequently, he filed a complaint on December 4, 1996.
At the conclusion of the investigation, the agency issued a FAD.<2>
The FAD concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions and that the complainant
did not show the agency's actions were a pretext for discrimination.
The complainant did not present any arguments on appeal. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corporation v. Green. 411 U.S. 792 (1973). For complainant to prevail,
he must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. Id. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
In order to establish a prima facie case of discrimination for a claim
of reprisal, complainant must show: (1) that he engaged in protected
activity; (2) that the alleged discriminating official was aware of the
protected activity; (3) that he was disadvantaged by an action of the
agency contemporaneously with or subsequent to such participation; and
(4) that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), aff'd, 545
F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,
86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action. The agency stated
that it issued the letter of reprimand to the complainant because he
violated the Standards of Conduct of the Code of Federal Regulations and
the contract between the American Federation of Government Employees
and the agency. According to the agency's policy, the seeing-eye dog
is an extension of the Co-worker and must be respected in the workplace.
The agency concluded that he stepped on the dog's tail, did not apologize
to Co-worker, did not make any effort to assure her that the action
was accidental, and disregarded her concerns for her seeing-eye dog.
As a result of his behavior, the agency issued a letter of reprimand to
"promote the efficiency of the Federal Service." (Exhibit 11, Letter
of Reprimand).
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, complainant now bears the
burden of establishing that the agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
We find that complainant has failed to meet this burden.
He alleged that other employees had stepped on Co-worker's dog, that
"this was not the first or last incident with the dog, however, it was
the only incident involving the dog that was written up." (Exhibit 6,
Affidavit of Complainant). However, he did not know who these other
employees were. (Exhibit 6, Addendum to Affidavit).
Also, he alleged that the agency allowed this situation "to fester for
two weeks" in order to harass him. According to the memorandum to the
file, the investigating supervisor noted the dates of the investigation.
On Wednesday, July 17, 1996, Coordinator notified her about the incident,
and she spoke with both witness. On Monday, July 22, 1996 (five days
later), the investigating supervisor interviewed the complainant (in
the presence of his supervisor and a union representative. On August
1, 1996, she wrote the memo, and on August 6, 1996, the agency issued
the reprimand. While the discipline was not issued for approximately
two weeks after the incident occurred, the Commission does not believe
the agency allowed this situation �to fester for two weeks." The agency
interviewed witnesses and agency officials within a short time of the
incident and investigated the matter thoroughly before making a decision.
Based on the above reasons, the Commission finds that complainant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination.
Therefore, after a careful review of the record, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
April 10, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 The complainant contends that he requested a hearing before an EEOC
Administrative Judge but the agency did not honor his request. However,
the complainant did not submit any proof that he or his representative
requested a hearing within the 30 days after receiving the investigative
file (mailed to him on February 5, 1998). The record does not support
this request.