0120081059
09-10-2009
Gregory R. Chatman, Complainant, v. Mary L. Schapiro, Chairman, Securities and Exchange Commission, Agency.
Gregory R. Chatman,
Complainant,
v.
Mary L. Schapiro,
Chairman,
Securities and Exchange Commission,
Agency.
Appeal No. 0120081059
Hearing No. 160-2003-08600X
Agency No. SEC 16-02
DECISION
On December 21, 2007, complainant filed an appeal from the agency's
November 6, 2007 final order concerning his equal employment opportunity
(EEO) complaint alleging 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether the EEOC Administrative Judge's (AJ) decision, finding that
complainant was not subjected to discrimination based on his race, age
and previous EEO activity, is supported by substantial evidence in the
record.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Staff Accountant, GS-13, at the agency's Broker/Dealer Branch
of the Boston District Office in Boston, Massachusetts. On October 8,
2002, complainant filed an EEO complaint alleging that:1
(1) he was discriminated against on the bases of race (African American)
and age (46 years old at time of the incidents) when he was not promoted
to the GS-14 level although he was performing the same or better work
than two younger, less-experienced Caucasian employees on his team who
were promoted; and
(2) he was discriminated against and subjected to a hostile work
environment on the bases of race and in reprisal for prior protected EEO
activity arising under Title VII when the Assistant District Administrator
yelled and screamed at him and made inappropriate comments regarding
his character and abilities.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation and a notice of his right to
request a hearing before an AJ. Complainant timely requested a hearing.
On September 22, 2004, the AJ issued a decision without a hearing finding
no discrimination on all claims. The agency issued a final decision
fully adopting the AJ's decision. On appeal, the Commission affirmed the
finding that complainant was not subjected to a hostile work environment.
Chatman v. Securities and Exchange Commission, EEOC Appeal No. 01A51046
(July 19, 2006). However, the Commission reversed the agency's final
decision regarding complainant's disparate treatment claims and remanded
these claims for a hearing. Id.
On remand, the AJ assigned to the case held a hearing on May 23, 2007 and
June 6, 2007. The AJ subsequently issued a decision on October 17, 2007,
finding no discrimination. Specifically, the AJ found that complainant
established a prima facie case of discrimination in claim (1), but he
failed to establish that the agency's reasons for his non-promotion were
a pretext for race and age discrimination. With respect to claim (2),
the AJ found that complainant failed to establish a prima facie case
of race discrimination or reprisal for prior protected EEO activity.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit a statement on appeal. The agency argues that
the appeal should be dismissed as untimely. The agency alternatively
argues that the Commission should affirm its final decision because
the AJ's decision finding no discrimination is supported by substantial
evidence in the record.
ANALYSIS AND FINDINGS
We first address the agency's claim that the appeal should be dismissed
as untimely. EEOC regulations provide that the Commission shall
dismiss an appeal from a final agency decision as untimely if the
appeal is not filed within thirty (30) days of receipt of the agency's
dismissal, final action, or decision. See 29 C.F.R. � 1614.402(a); 29
C.F.R. � 1614.403(c). A review of the record reveals that complainant
received a copy of the agency's final decision on December 13, 2007.
Complainant subsequently filed the instant appeal on December 21, 2007,
which was within the 30 day limitation period. Therefore, we deem
complainant's appeal timely.
Pursuant to 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
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 Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of retaliation by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas, 411
U.S. at 802). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, complainant may establish
a prima facie case of reprisal by showing that: (1) he engaged in
a protected activity; (2) his employer was aware of the protected
activity; (3) subsequently, he was subjected to adverse treatment by
his employer; and (4) a nexus exists between the protected activity
and the adverse treatment. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000).
The Commission has stated that adverse actions need not qualify as
"ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. EEOC Compliance
Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998);
see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)
(finding that the anti-retaliation provision protects individuals from a
retaliatory action that a reasonable person would have found "materially
adverse," which in the retaliation context means that the action might
have deterred a reasonable person from opposing discrimination or
participating in the EEO process).
Claim (1)
Assuming arguendo that complainant established a prima facie case of race
and age discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for his non-promotion. The Branch Chief,
complainant's direct supervisor, testified at the hearing that in
1998 the agency implemented a merit promotion program. She testified
that in 2002 five employees at the GS-13 level, including complainant,
were eligible for promotion to the GS-14 level. She testified that the
promotion standard was outstanding performance in the employees' critical
elements. Two of the five employees were given promotions. The Branch
Chief testified that complainant and two other employees did not get
promoted because their work was not considered to be at an outstanding
level. She stated that complainant had "weak leadership skills," and
his reports were not always well written as evidenced by his reports
having a lack of focus, improper citations, and grammatical errors.
Similarly, the Assistant District Administrator, complainant's second
level supervisor, testified that complainant's report writing "was not
strong," and his work "didn't put him into an outstanding category yet."
Both the Branch Chief and the Assistant District Administrator
testified that the two individuals given promotions were considered to
be outstanding performers. The Branch Chief indicated that the first
selectee had a lot of industry experience and "excelled in every area,"
progressing well after he joined the agency as he received guidance. She
testified that the other selectee was a very good examiner who "thought
of things ahead of time," and improved his writing and communication
skills over time. The Assistant District Administrator testified that the
first selectee was promoted "based on his performance as a broker-dealer
examiner, the quality of his reports, the quality of his work product,
in general, his examination skills, which were very good." He testified
that the second selectee's work was also superior to complainant's work.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. Upon review, we find that the AJ's determination that
complainant failed to establish pretext is supported by substantial
evidence in the record. Complainant did not submit a statement on appeal,
and we find no evidence that the agency's actions were motivated by
discriminatory animus towards his race or age. Although complainant
disputed the testimony provided by agency officials at the hearing,
the AJ found that the management officials provided credible testimony.
We find no evidence in the record that undermines the testimony provided
by the management officials at the hearing. Moreover, we note that
the AJ questioned the credibility of complainant's testimony regarding
the quality of his work performance and that complainant's performance
evaluation during the relevant time noted that he needed to continue
improving his report writing and proof reading skills.
Claim (2)
Upon review, we concur with the AJ's finding that complainant failed
to establish a prima facie case of discrimination based on race or in
reprisal for his prior protected EEO activity when, on August 23, 2002,
the Assistant District Administrator yelled and screamed at him and
allegedly threatened to "give him enough work to hang himself."2 We
find that complainant failed to establish a prima facie case of race
discrimination because he failed to establish that he was subjected
to an adverse action. With respect to his retaliation claim, we find
that complainant failed to establish a causal nexus between his prior
protected activity and the alleged retaliatory action. The AJ determined
that the Assistant District Administrator credibly testified that he was
unaware of complainant's protected activity, and he was angry on that date
because the union had filed an Unfair Labor Practice claim against him
on behalf of complainant and other employees. We find that complainant
failed to introduce persuasive evidence sufficient to raise an inference
that reprisal motivated the Assistant District Administrator's actions,
because participating in a union grievance process is not considered
protected activity under Title VII.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
factual findings are supported by substantial evidence in the record.
We discern no basis to disturb the AJ's decision. Accordingly, after
a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in the
decision, the agency's final order is AFFIRMED.
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
_____9/10/09_____________
Date
1 Complainant alleged other claims that were dismissed by the agency
for untimely EEO Counselor contact and/or failure to state a claim.
These claims are not at issue on appeal.
2 As noted above, the Commission's previous decision affirmed the
agency's determination that complainant was not subjected to a hostile
work environment.
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0120081059
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081059