Jordan S.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionApr 25, 20180120161049 (E.E.O.C. Apr. 25, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jordan S.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120161049 Agency No. CHI-15-0187-SSA DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal from the December 12, 2015 final agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Law Judge (ALJ), ALJ 3-F, at the Agency’s Hearing Office in Evanston, Illinois. Complainant has been in this position since October 2001, and was the Hearing Office Chief Administrative Law Judge (HOCALJ) from October 2005 to October 2014. In October 2014, Complainant’s subordinate, the Hearing Office Director (HOD), complained about Complainant’s management practices and other actions. Complainant claimed that he had only attempted to convey constructive criticism to HOD about what the Evanston ALJs were saying about her communication style and her need to build rapport. Following HOD’s report, Complainant offered his resignation as HOCALJ, but later changed his mind and withdrew his resignation. Based on HOD’s concerns, Complainant’s supervisor, the Regional Chief ALJ (S1), ordered an administrative investigation. Complainant was temporarily relieved of his managerial duties and 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120161049 2 ordered to report to the Chicago Hearing Office while the investigation was conducted. S1 appointed an Acting HOCALJ while the investigation into Complainant’s conduct was ongoing. The Agency’s Regional Office Labor Relations staff conducted an investigation from November 7, 2014 to January 12, 2015, to determine whether Complainant had harassed HOD or others or violated any other laws or policies. The Associate Chief Administrative Law Judge reviewed the investigation’s findings and ultimately concluded on March 11, 2015, that Complainant’s actions did not rise to the level of a hostile work environment. Nonetheless, the Associate Chief Administrative Law Judge expressed concerns about how Complainant performed in his managerial role. Witnesses reported that Complainant “threw people under the bus;” acted condescending and passive aggressive; and that Complainant did not react well to feedback. Further, the Associate Chief Administrative Law Judge was especially concerned about Complainant’s conduct following his October 3, 2014 conversation with HOD regarding complaints he had received about her. On October 6, 2014, Complainant approached HOD and asked if she intended to file an EEO complaint against him. Complainant acknowledged asking that of HOD, but stated that he wanted to “find out if we were going to have a working relationship.” The Associate Chief Administrative Law Judge recommended that if Complainant was returned to a managerial position, he receive extensive monitoring and management training. The Associate Chief Administrative Law Judge further recommended that Complainant be counseled regarding his comment to HOD about filing a complaint. Finally, the Associate Chief Administrative Law Judge additionally recommended that HOD receive training on “soft skills” such as how to relate to others with diplomacy and tact. Complainant claimed that on December 18, 2014, he learned that he had been removed from the Evanston office email list since October 2014, and had not been allowed to attend staff meetings. As a result, Complainant stated that he nearly missed a mandatory No Fear Act and Whistleblowing training. Complainant asserted that since he was not allowed in the Evanston office, he missed attending ALJ meetings for approximately five months. On or around November 10, 2014, Complainant claimed that he submitted a written request for a copy of HOD’s complaint against him. Complainant alleged that S1 denied his request. On November 13, 2014, Complainant submitted a request for a copy of the complaint under the Privacy Act, and S1 advised him “You are not entitled to a copy of [HOD’s] statement. I misspoke when I characterized her statement as a complaint.” On November 14, 2014, Complainant claimed that he wrote to S1 explaining why he disagreed with her position and again asked for a copy of the complaint; and, she never responded orally or in writing. On January 24, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (White), national origin (Hispanic), and sex (male) when: 0120161049 3 1. On or around October 24, 2014 and ongoing, Complainant was instructed to report to the Chicago office on days that he was not holding hearings, which was nearly an hour further than his assigned duty station; 2. On or around October 24, 2014 and ongoing, an announcement was made that there would be an Acting Hearing Office Chief Administrative Law Judge (HOCALJ) replacing Complainant; 3. On or around October 24, 2014 and ongoing, Complainant was removed from the Evanston email list and was not allowed to attend staff meetings, ALJ meetings or office parties; and 4. On or around November 13, 2014, Complainant’s request for a copy of the complaint against him was responded to by stating that the complaint was an oral complaint only. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of discrimination and found that management had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, S1 explained that she informed Complainant that he needed to temporarily step down as the HOCALJ and report to the Chicago Hearing Office during an investigation into reports that he had harassed HOD. S1 stated that it was necessary to temporarily fill the vacancy and select an ALJ to serve as acting HOCALJ. S1 affirmed that these decisions were consistent with actions she had previously taken in similar circumstances. Regarding being removed from the Evanston email list, Agency officials denied any knowledge of Complainant’s name being removed from the list. Finally, S1 confirmed that HOD did not submit a written complaint against Complainant; rather, management obtained information during meetings with her and the Regional Management Officer and determined that an investigation was necessary. The Agency concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been subjected to discrimination as alleged. Complainant filed the instant appeal, but failed to submit a timely brief in support. 0120161049 4 ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim such as this, 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 Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review of the record, and assuming arguendo that Complainant established a prima facie case of discrimination, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In particular, with respect to claims (1) and (2), S1 explained that Complainant reported to her that he believed that HOD would file an EEO complaint against him following a meeting he had with HOD in which he shared that other judges perceived her to be abrupt, disrespectful, and combative in tone. ROI, at 141. S1 stated that Complainant initially offered and submitted his resignation. Id. at 141-42. On October 17, 2014, HOD met with the Regional Management Officer, and expressed her concerns about Complainant and the Evanston Hearing Office. Id. at 141. On October 20, 2014, S1 affirmed that Complainant indicated that he had changed his mind and did not wish to step down from his position. Id. at 142. S1 stated that she informed Complainant that management had determined that it was necessary to investigate HOD’s concerns and that he was being temporarily assigned to the Chicago Hearing Office while the matter was investigated. Id. S1 noted that Complainant was reimbursed for his travel costs and given the opportunity to telework two days a week, but he did not wish to telework. Id. at 142-43. S1 stressed that it was necessary to temporarily fill the vacancy of Complainant’s position; therefore, management selected an Acting HOCALJ and announced the selection of an Acting HOCALJ via email to the Region 5 managers. Id. at 143. As to claim (3), management officials denied instructing anyone to remove Complainant from the Evanston email list or disallowing him to attend staff meetings or office parties. ROI, at 136, 145, 154. Finally, regarding claim (4), S1 stated that HOD did not file a written complaint; rather, based on information gathered during a meeting with the Regional Management Officer, management determined that an investigation was warranted. Id. at 146. The record contains an unsigned statement dated October 3, 2014 that appears to have been written by HOD; however, there is no indication to whom it was written or provided. ROI, Ex. 12. Further, the March 11, 2015 investigative summary reveals that an investigation was conducted based on Complainant’s report of HOD’s concerns during the October 17, 2014 meeting. Id. at 209. The investigation ultimately determined that Complainant’s conduct did not rise to the level of creating a hostile 0120161049 5 work environment; however, the Associate Chief Administrative Law Judge had concerns about placing Complainant back in a managerial role and recommended he receive extensive mentoring and training. Id. at 209-10. Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As Complainant did not request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant’s protected classes were a factor in any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. Finally, to the extent that Complainant alleges that he was subjected to a hostile work environment with respect to the matters herein, the Commission finds that a finding of a hostile work environment is precluded by the Commission’s determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, the Commission finds that Complainant has not established that he was subjected to discrimination or a hostile work environment as alleged. CONCLUSION 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 decision because the preponderance of the evidence of record does not establish that discrimination occurred. 0120161049 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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. 0120161049 7 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 25, 2018 Date Copy with citationCopy as parenthetical citation