01a42800
02-10-2005
Henry G. Watkins, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Henry Watkins v. Social Security Administration
01A42800
February 10, 2005
.
Henry G. Watkins,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A42800
Agency No. 020246SSA
Hearing No. 110-A3-8145X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Regional Chief Administrative Law
Judge (ALJ) at the agency's Office of Hearings and Appeals facility, filed
a formal EEO complaint on January 7, 2002. He alleged that the agency
had discriminated against him on the bases of his race (African-American),
his sex (male), and in reprisal for prior EEO activity when:
(1) he was issued a reprimand in November 2001;
(2) he was denied travel authorization and executive training
opportunities;
(3) he was denied adequate resources and management support;
(4) he was denied an early retirement offer; and
(5) he was subjected to a hostile work environment as a result of all
of the above incidents and others.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination on any of the alleged bases.
Specifically, the AJ concluded that complainant failed to establish by a
preponderance of the evidence that he was discriminated against because
he is an African American male. The AJ also found that complainant
failed to prove he was subjected to a hostile work environment because of
his membership in a protected class. The AJ found complainant was not
credible as a witness because his testimony was internally inconsistent
in some respects. He further found that the agency's witnesses were
credible particularly in their reasons for issuing the reprimand in 2001.
Concerning the reprimand, the AJ determined that six other Regional
Chief ALJs had also been disciplined or counseled for various incidents
in the past. He concluded that although no other ALJs were given written
reprimands, there was no showing that these ALJs were similarly situated
to complainant. That is, none of the other individuals was supervised
by the same manager or was involved in a similar kind of incident.<1> He
further found that while the normal procedures for issuing the reprimand
were not followed, the process used did not reflect a discriminatory
intent.
Regarding the denial of Federal Executive Institute (FEI) training,
the AJ concluded that as a separate claim, complainant did not raise his
complaint about the selections in a timely manner because they occurred
more than 45 days prior to his first contact with an EEO counselor.
Nevertheless, the AJ concluded that the agency was legitimately concerned
that complainant was intending to retire in 2002 such that approving
the training was not in the agency's best interest.
Addressing the early-out retirement claim, the AJ decided that based
on the testimony of agency managers, complainant was only denied the
early-out option because it was not being offered to any other workers
in general. Thus, the agency expressed a legitimate non-discriminatory
reason for declining to give complainant specialized treatment by offering
him an early retirement option.
Finally, the AJ addressed other issues raised as part of the hostile work
environment claim in general. The AJ decided that complainant did not
demonstrate that the agency's failure to select him to act as the Chief
ALJ was discriminatory. More specifically, those who had served in this
capacity only served for a six month period and there had been one other
African American who had held the post. In addition, complainant did not
establish he was substantially more qualified to be selected than those
who had, particularly in light of a conflict complainant had involving
a subordinate employee. The AJ determined that for such high level
positions, a certain amount of subjectivity in the selection process
is allowed. For these reasons, the AJ found there was no discriminatory
intent in the agency's decision not to select complainant.
Concerning complainant's claim that he was being ignored in his requests
for more resources, the AJ concluded that the Associate Commissioner was
new in his position and admitted that he was initially not responsive to
complainant's e-mails. Complainant was not singled out, however, because
other managers also stated that the Associate Commission did not respond
to them either. The AJ also concluded that there was no evidence that
the distribution of resources was discriminatory and that complainant's
region was given proportionately more resources than other regions.
On the whole, the AJ determined that complainant did not establish that
a hostile work environment existed. Of all the incidents alleged to be
harassment or hostile, the AJ concluded that the agency had a legitimate
reason for its actions. The agency's final order implemented the AJ's
decision.
On appeal, complainant contends that the AJ erred in finding no
discrimination. He asserts that the agency retaliated against him after
he filed his EEO complaint when it refused to authorize his travel and
a request for training. Complainant claims that the EEO process was
seriously flawed because he was denied access to discovery, because
the information he was eventually given was false and because records
concerning who attended FEI training was not properly retained after he
filed his complaint. Complainant contends that agency counsel involved
in his case should be disqualified from appearing at any further EEOC
proceedings because of their �gross unethical misconduct.�
Complainant challenges the AJ's findings regarding the reprimand on the
grounds that there was no substantial evidence to support that complainant
intended to belittle the employee involved in the incident.
ANALYSIS AND FINDINGS
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.
The Commission conducted a thorough review of the record and concludes
that the AJ's findings of fact are supported by substantial evidence
in the record. We are not persuaded that the AJ's decision should
be overturned. The AJ held a five day hearing and gave complete and
fair consideration to all of complainant's claims. We conclude that his
conclusion that the preponderance of the evidence did not establish that
discrimination occurred was correct and was supported by the evidence.
We note that the AJ addressed complainant's concerns expressed on appeal,
that the agency would not provide him with certain information and
documents which complainant interpreted as obstructionist and deceitful.
The AJ concluded and we agree, that complainant's concerns were based on
his misinterpretation of the purpose of the informal counseling process
as one in which extensive discovery occurs.<2> During this process,
however, the agency only attempts to determine the precise nature of
the claims and to resolve the issues informally. Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
ch.2 (rev. November 9, 1999). The counseling process is not a time for
the parties to propound and to respond to discovery requests which occurs
during the hearing stage.
Therefore, based on the record as a whole and a full review of the
record, including complainant's contentions on appeal, and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 10, 2005
__________________
Date
1The incident at issue occurred during a
meeting called by complainant of his subordinate employees. It was
undisputed that in response to a question raised by an employee,
complainant stated �somebody really asked a question...ma'am, if you
didn't have the American flag pin on, I'd slap you for asking a question.�
The record reflects that the employee wrote to various congressmen
and other agency officials about the incident. Complainant in return,
wrote a letter to the employee, stating �this letter serves as my notice
to you of my intent to pursue legal action against you for making false
and malicious statements.�
2In any event, under the Commission's regulations we do not recognize
a claim based on complaints about the EEO process. 29 C.F.R. Section
1614.107(a)(8).