Michael O'Brien, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 31, 2000
01983844 (E.E.O.C. Mar. 31, 2000)

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.