01983844
03-31-2000
Michael O'Brien, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Michael O'Brien v. Social Security Administration
01983844
March 31, 2000
Michael O'Brien, )
Complainant, )
) Appeal No. 01983844
v. ) Agency No. 960-164
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (White), sex (male) and in reprisal for 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 harassed and
discriminated against when he received a written reprimand. The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the Commission affirms the FAD as clarified.
The record reveals that during the relevant time, complainant was employed
as a GS-8 Teleservicer at the agency's facility in Lodi, New Jersey.
Complainant received a written reprimand for Violations of Standards
of Conduct - Discourtesy on October 25, 1995.<2> The reprimand cited
instances of telephone discourtesy which occurred on September 29, 1995
and October 20, 1995. Specifically, on October 20, 1995, complainant's
supervisor (CS) stated that she had to intervene and speak to complainant
about three separate phone calls because of his refusal to efficiently
and expeditiously assist the callers involved. CS stated that she issued
the written reprimand because complainant's repeated refusal to assist
the callers was "egregious." The reprimand also referenced a phone
call which occurred on September 29, 1995, wherein CS gave complainant
a verbal warning because of the manner in which he responded to a caller.
Believing the agency discriminated against him, complainant sought EEO
counseling and subsequently filed a formal complaint on March 22, 1996.
At the conclusion of the investigation, when complainant failed to timely
request a hearing before an EEOC Administrative Judge, the agency issued
a final decision from which complainant now appeals. Neither party
submitted a statement in support of or in response to the appeal.
Based on the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981), and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission agrees with the agency that complainant failed
to establish a prima facie case of race, sex or reprisal discrimination.
Initially, we note that CS is of the same race as complainant; that the
Manager, who ultimately approved the written reprimand, is of the same
sex as complainant; and that there were no similarly situated employees
who ever received written reprimands for being discourteous to callers.
The record indicates that supervisors would generally discuss performance
problems and limit written ratings and evaluations to technical criteria.
However, on October 20, 1995, complainant did not respond to CS's
intervention and continued to refuse to assist two subsequent callers.
Both the Assistant Manager and the Manager agreed that the written
reprimand was appropriate. Their testimony and testimony from a former
Acting Supervisor and a Technical Assistant, whose job it was to observe
the kind of service the Teleservicers provide, corroborate CS's assertion
that complainant was counseled about his telephone manners on numerous
occasions. Since complainant has failed to present evidence that on
October 20, 1995, he was meeting the legitimate expectations of his job,
we decline to find that management's decision to discipline him was
motivated by discriminatory animus.
Although the FAD did not address complainant's claim of harassment,
based on the standards set forth in Harris v. Forklift Systems Inc.,
510 U.S. 17, 21 (1993), we find that the written reprimand, standing
alone, was insufficiently severe or pervasive to create a hostile work
environment. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we affirm the FAD as clarified.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
March 31, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
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 reprimand incorrectly stated the number of days he had in which
to respond. As a result, his supervisor (CS) reissued the reprimand on
October 30, 1995, with the appropriate correction.