Franklin Smithson, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionAug 22, 2000
01a03598 (E.E.O.C. Aug. 22, 2000)

01a03598

08-22-2000

Franklin Smithson, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Franklin Smithson v. Social Security

01A03598, 01976916

August 22, 2000

.

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 19848

Washington, D.C. 20036

Franklin Smithson,

Complainant,

v.

Kenneth S. Apfel,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A03598, 01976916

Agency No. SSA930372, SSA980180

Hearing No. 120-99-6412X

DECISION

INTRODUCTION

Complainant timely initiated appeals from a final agency decision

and a final agency order concerning his equal employment opportunity

(EEO) complaints of unlawful employment discrimination in violation

of the the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791,

et seq.<1> The appeals are accepted pursuant to 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405) and consolidated.

Complainant alleges that he was discriminated against on the basis of

physical disability (degenerative disk disease) and in retaliation for

having engaged in protected EEO activity when:

(1) he was nonselected for a variety of positions;

(2) the agency used his surname in an agency publication in a manner

complainant regarded as demeaning; and

(3) the agency released information from his personal Social Security

disability file without authorization.

BACKGROUND

The record reveals that complainant, a GS-12 Social Insurance Specialist

at the agency's Office of Disability Operations in Baltimore, Maryland,

made an informal EEO complaint to the agency alleging that the agency

had discriminated against him on the basis of physical disability when

it published an internal procedural manual which discussed various

hypothetical situations involving fictitious claimants. One of these

fictitious claimants was given the surname Smithson. Complainant believed

that the agency meant this as a reference to him and he regarded it

as demeaning. In a settlement agreement dated July, 1992, the agency

agreed to discontinue the use of the Smithson name in future editions

of the publication.

On February 24, 1993, complainant filed a formal EEO complaint<2>

alleging that 1) on January 20, 1993 he was not selected for three

vacancies for which he had applied<3>; 2) from 1979 until the date of

filing, in violation of the July 1992 settlement agreement, the agency

had continued to use his surname in its publication; 3) for an unspecified

period of time, the agency engaged in unauthorized release of information

from complainant's Social Security disability file.<4>

The agency wrote to complainant, accepting the complaint. However,

the acceptance letter listed as issues raised by the complaint only the

nonselection claims and made no reference to the breach of the settlement

agreement or the release of information from his disability file.

Following an investigation, the agency issued a FAD, dated May 15, 1995,

addressing only the nonselection issues and finding no discrimination.

Complainant appealed the FAD to this Commission.<5> We reversed and

remanded the entire complaint. With respect to the issues omitted

from the FAD, we directed that the use of complainant's name issue be

remanded and processed as an allegation of settlement breach, pursuant

to 29 C.F.R. � 1614.504. We ordered that the allegation concerning

improper release of information be remanded to permit the agency to

determine whether the claim should be accepted or dismissed.

Concerning the nonselection issue, we held as follows:

the Commission notes that the present FAD fails to set forth

any of the material facts of the case, fails to set forth the law

applicable to the case; and fails to apply the law to those facts in

an instructive way, thereby depriving [complainant] of a meaningful

right of appeal. . . .Therefore, on remand, the agency is instructed

to provide [complainant] with a FAD which sets forth the material facts

of the case and explains with particularity, not only the law which is

applicable to his complaint, but whether and why [complainant] has or

has not established his claim. [citations omitted, emphasis supplied]

Following the remand, the agency issued a partial FAD, dated September 17,

1997, finding no discrimination in connection with the three nonselection

claims but deferring decision on the remaining claims. From that FAD

complainant brings one of the consolidated appeals now before us.

On December 10, 1997, complainant filed a second formal complaint<6>

alleging that he had been discriminated against when he was nonselected

for a fourth position for which he had applied.<7> The agency accepted

that complaint and conducted an investigation. At the conclusion

of the investigation, complainant requested a hearing before an EEOC

Administrative Judge (AJ). The AJ conducted a hearing addressing the

nonselection issue from the 1997 complaint as well as the unresolved

issues from the 1993 complaint.

With respect to the nonselection issue, the AJ held that complainant had

failed to establish a prima facie case and, alternatively, that the agency

had articulated a legitimate, nondiscriminatory reason for its actions

which complainant had failed to prove to be a pretext for intentional

discrimination. With respect to the improper use of complainant's name,

the AJ held that the complainant failed to state a claim. Concerning the

improper release of confidential information from complainant's disability

file, the AJ held that complainant had failed to bring the matter to

the attention of an EEO counselor in a timely manner.

The agency's final order implemented the AJ's decision. From that order

complainant brings the second of the consolidated appeals now before us.

FINDINGS AND ANALYSIS

After a careful review of the record, the Commission finds that the FAD

should be REVERSED with respect to one of complainant's nonselection

claims and AFFIRMED with respect to the balance of the nonselection

claims. We further find that the final agency order implementing the

AJ's decision should be AFFIRMED.

Appeal No. 01976916 (Nonselection)

Disability Discrimination.

In order to establish a prima facie case of disability discrimination,

complainant must show that he is a qualified person with a disability and

that the agency treated him less favorably than individuals not within

his protected group or that it failed to make a reasonable accommodation

for his disability.<8> In addition, complainant must show that there is

a nexus or causal relationship between the disabling condition and the

challenged agency action. See Prewitt v. United States Postal Service,

662 F.2d 292 (5th Cir. 1981); Visage v. Department of the Air Force,

EEOC Request No. 05940993 (July 10, 1995). In order to establish a

causal relationship, it must be shown that the agency had knowledge of

complainant's disabling condition at the time it took the challenged

action. Martin v. United States Postal Service, EEOC Appeal No.

01954089 (March 27, 1997).

It is undisputed that complainant has degenerative disk disease.

However, the record contains no evidence whatever that any of the

agency managers involved in nonselections here at issue were aware of

his condition. Without such evidence, complainant cannot prove that

the agency intentionally discriminated against him. Accordingly, we

find that complainant has failed to establish a prima facie case of

disability discrimination.

Retaliation. Under the standards set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), in order to establish a prima

facie case of retaliation, complainant must show that: (1) he engaged

in prior protected activity of which relevant management officials

were aware; (2) he was subject to an adverse action; and (3) there

is a causal link between the protected activity and adverse action.

See Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).

The causal connection may be shown by evidence that the adverse action

followed the protected activity within such a period of time and in such

a manner that a reprisal motive is inferred. See Devereux v. United

States Postal Service, EEOC Request No. 05960869 (April 24, 1997).

The record shows that complainant had engaged in prior protected

activity, i.e., his 1992 informal complaint that he was discriminated

against by the agency's use of his surname in what he regarded as a

demeaning way. It also establishes that complainant was subjected to

adverse actions when he was nonselected for three positions in 1993.

The record also shows a causal connection between the prior protected

activity and the adverse actions, which were temporally separated by

less than one year.

However, only in connection with one of the nonselections, Vacancy

Announcement No. M-662, has complainant shown that a relevant management

official was aware of complainant's prior protected activity. In that

case, one of the two managers who determined which applicants would

be interviewed for the position, acknowledged that he was aware that

complainant had made a complaint and that the matter had been settled.

Thus, we find that complainant has made out a prima facie case of

retaliation with respect to his nonselection for the position advertised

in Vacancy Announcement No. M-662 and that he has failed to do so with

respect to his nonselection for the positions advertised in Vacancy

Announcement Nos. M-647 and M-656.

Once a complainant has set forth a prima facie case, the burden

of production shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. McDonnell Douglas, 411

U.S. at 802-04. The agency may rebut the presumption of discrimination by

clearly setting forth, through the introduction of admissible evidence,

its reasons for not selecting complainant. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 254-255 (1981).

The agency's explanation must be sufficiently clear to raise a "genuine

issue of fact" as to whether discrimination occurred. Burdine, 450

U.S. at 254. Moreover, it must "frame the factual issue with sufficient

clarity so that [complainant] will have a full and fair opportunity to

demonstrate pretext." id. at 255-256; Parker v. United States Postal

Service, EEOC Request No. 05900110 (April 30, 1990) (citing Burdine, 450

U.S. at 256); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993), citing U.S. Postal Service Board of Governors v. Aikens, 460

U.S. 711, 716 (1983) and Burdine, 450 U.S. at 256. While the agency's

burden of production is not onerous, it must nevertheless provide

a specific, clear, and individualized explanation for the treatment

accorded the affected employee. Lorenzo v. Department of Defense,

EEOC Request No. 05950931 (November 6, 1997).

Here, the agency has failed to meet this burden. The explanation for

its failure to select complainant for the position advertised in Vacancy

Announcement No. M-662 is neither specific, clear, nor individualized.

Indeed, it is virtually nonexistent. The only description the FAD

contains concerning the process by which the agency decided not to

include complainant on a list of potential selectees is as follows:

�[two managers] reviewed the applications for reassignment eligibles,

of which [complainant's] was one, and did not conduct interviews because

interviews were not required for reassignment eligibles.�<9> Thus,

the only explanation for complainant's nonselection is that, based on

a review of his application, he was not selected. A less informative

explanation for an agency's hiring decision is difficult to imagine.

We hold that the agency did not adequately explain its decision not to

select complainant and that as a consequence, complainant was denied

a fair opportunity to demonstrate pretext. See Young v. Department of

the Treasury, EEOC Request 05940517 (October 13, 1995). Thus, we find

that complainant was retaliated against when he was not selected for

the position advertised in Vacancy Announcement Number M-662.

Appeal No. 01A03598 (Nonselection, Use of Name, Release of Confidential

Information)

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29

C.F.R. � 1614.405(a)), all post-hearing factual findings by an AJ will be

upheld if supported by substantial evidence in the record. Substantial

evidence is defined as �such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.� Universal Camera

Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

Based on a thorough review of the record evidence we conclude that the

AJ's decision should be affirmed. The decision summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

We note, in particular, with respect to the nonselection claim, that the

record contained no evidence showing that the relevant managers were

aware either that complainant was disabled or that he had engaged in

prior protected EEO activity. We discern no basis to disturb the AJ's

decision.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not specifically discussed in this decision, in Appeal No. 01976916

the Commission AFFIRMS IN PART and REVERSES IN PART the agency's final

decision and REMANDS the matter to the agency to take remedial actions

in accordance with this decision and the ORDER below. In Appeal

No. 01A03598, the Commission AFFIRMS the agency's final order.

ORDER (D1199)

The agency is ORDERED to take the following remedial action:

The agency shall offer complainant the position of SICE Disability

Specialist, GS-12, at its facility in Baltimore, Maryland or if a SICE

Disability Specialist, GS-12 position is unavailable, then a substantially

equivalent position in that area. Complainant shall be given a minimum

of fifteen days from receipt of the offer of placement within which

to accept or decline the offer. Failure to accept the offer within

the time period set by the agency will be considered a rejection of the

offer, unless complainant can show that circumstances beyond his control

prevented a response within the time limit.

The agency shall determine the appropriate amount of back pay (with

interest, if applicable) and other benefits due complainant retroactive

to the date complainant would have been hired absent discrimination,

pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar

days after the date this decision becomes final. The complainant shall

cooperate in the agency's efforts to compute the amount of back pay and

benefits due, and shall provide all relevant information requested by

the agency. If there is a dispute regarding the exact amount of back

pay and/or benefits, the agency shall issue a check to the complainant

for the undisputed amount within sixty (60) calendar days of the date

the agency determines the amount it believes to be due. The complainant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

The agency shall conduct a supplemental investigation pertaining to

complainant's entitlement to compensatory damages incurred as result of

the agency's discriminatory actions. See Teshima v. United States Postal

Service, EEOC Appeal No. 01961997 (May 5, 1998); Feris v. Environmental

Protection Agency, EEOC Appeal No. 011934828 (August 10, 1995), request

to reopen denied, EEOC Request No. 05950936 (July 19, 1996); Rivera

v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994);

Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,

1993). See also, Cobey Turner v. Department of the Interior, EEOC Appeal

Nos. 01956390 and 01960518 (April 27, 1998); Jackson v. United States

Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request

for reconsideration denied, EEOC Request No. 05930306 (February 1, 1993).

The agency shall afford complainant sixty (60) days to submit additional

evidence in support of his claim for compensatory damages. Within thirty

(30) days of its receipt of complainant's evidence, the agency shall issue

a final decision determining complainant's entitlement to compensatory

damages, together with appropriate appeal rights.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of backpay and other benefits due complainant,

including evidence that the corrective action has been implemented.

The agency is further directed to post a notice in compliance with the

paragraph below entitled �Posting Order.�

The agency is further directed to make payment to complainant in

compliance with the paragraph below entitled �Attorney's Fees.�

POSTING ORDER (G1092)

The agency is ORDERED to post at its Baltimore, Maryland facility copies

of the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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).

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 22, 2000

__________________

Date

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.

2Agency No. SSA930372.

3These position were advertised in vacancy announcement numbers M-647

(Disability Examiner, SICE position, GS-12); M-656 (Supervisory SICE

Disability Specialist, GS-13); and M-662 (SICE Disability Specialist,

GS-12).

4It appears that complainant, for some years prior to his employment by

the agency, was a recipient of Social Security disability benefits.

5Smithson v. Social Security Administration, EEOC Appeal 01954393

(August 15, 1997).

6Agency No. SSA980180,

7This position was advertised in Vacancy Announcement No. H-1762 (Social

Insurance Specialist, GS-13).

8The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

9The affidavits of the selecting officials contained in the report

of investigation do not set forth any additional relevant information

concerning the selection process.