0120064503
03-25-2008
Nathan J. Colodney, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Nathan J. Colodney,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01200645031
Hearing No. 120-2005-00668X
Agency No. 05-014-CMS
DECISION
On July 24, 2006, complainant filed an appeal from the agency's June
22, 2006, final decision 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 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 decision.
BACKGROUND
The record reflects that in October 2004, complainant began working as
the Director, Office of Health Insurance Portability and Accountability
Act Standards at the Centers for Medicare and Medicaid Services ("CMS"),
Office of the Administrator in Baltimore, MD. This position was a Senior
Executive Service ("SES") level position which required complainant to
serve a one year probationary period. Complainant was responsible for
supervising approximately 23 employees.
Several weeks after complainant began serving in his position, one of his
employees (female, Caucasian) informed an attorney on the Employee/Labor
Relations Team (female, Caucasian) that complainant had allegedly made
comments to her and other employees that she had found to be offensive.
The employee alleged that complainant's comments included stating that
"two 22-year old Hopkins nurses are looking for a roommate . . . they
probably need supervision and [I'm] just the guy to do it;" and,
in response to hearing the employee and other employees discussing
child care, that "you two are the reason people shouldn't have kids."
The employee also alleged that complainant had made negative comments
about a co-worker and made another statement she had found offensive as
a working mother.
After hearing about complainant's comments and the employee's concerns,
the Director, Workforce Relations Division ("WRD") (female, African
American) discussed the situation with the Deputy Chief Operating
Officer ("COO") (female, Caucasian). The agency then decided to launch
an inquiry into the matter. A Human Resources Specialist (female,
Caucasian) was tasked with conducting the inquiry. The Human Resources
Specialist interviewed several employees in the office and documented
the interviews by taking notes. The investigation revealed that several
women and men in the office felt that complainant had made inappropriate
statements in the workplace. In addition to the aforementioned comments,
complainant allegedly discussed online dating with employees; stated that
two men in a picture looked like "gay guys," and stated that a picture he
saw of several men looked like an advertisement for the television show
"Queer Eye for the Straight Guy." Moreover, complainant was accused of
making derogatory comments about office employees.
After the employees were interviewed, the Human Resources Specialist,
the WRD Director and the Director, CMS Office of Operations Management
(female, Caucasian) met with complainant to discuss the allegations.
Additionally, the panel questioned complainant about his previous
employment after noting that complainant did not submit his entire
employment and education history when he applied for the position.
Complainant stated that the statements he made were appropriate for a
work environment and indicated that the office environment had improved
over time. Complainant also indicated that he did not include some of his
prior work history in his application because he felt it was not relevant.
After complainant's interview was over, he was given an opportunity
to review the typed notes of his responses which were prepared by the
Human Resources Specialist. Complainant disagreed with the content of
the summary and submitted his own signed interview summary.
After the inquiry was completed, the Deputy COO consulted with the
interview panel and a representative from the General Counsel's office.
Management concluded that complainant's statements had not necessarily
created a hostile work environment, but complainant had demonstrated poor
leadership. As a result, the Deputy COO recommended that complainant
be removed from his probationary SES position, and the CMS COO (male,
Hispanic) concurred with her recommendation. Complainant was issued
a letter dated December 22, 2004, removing him from his position.
Complainant was subsequently placed in position of Health Insurance
Specialist, GS-15, at the same rate of pay he had received in his former
SES position.
On February 3, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (Caucasian), sex (male),
and in reprisal for prior protected EEO activity (arising under Title VII)
when:
(1) From November through December 2004, he was subjected to an internal
investigation, which he alleged was initiated and conducted improperly;
and
(2) On December 22, 2004, complainant learned that he was being removed
from his SES position during his probationary period based upon less
than fully successful executive performance, effective December 25, 2004.
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 EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that he was
subjected to discrimination as alleged. Specifically, the agency
determined that complainant failed to establish a prima facie case
of discrimination and that he failed to establish that the agency's
legitimate, nondiscriminatory reasons for its actions were a pretext
for unlawful discrimination and/or retaliation.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred in finding no
discrimination and reiterates arguments made below. Complainant argues
that he established a prima facie case of discrimination and that he
established pretext. Complainant alleges that agency officials committed
perjury and that their testimony was fraudulent. Complainant argues
that he established that agency officials conducted the inquiry in an
improper manner because the investigation was not conducted in accordance
with agency guidelines. In response, the agency requests that we affirm
its final decision and argues that its decision was properly decided.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). 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). If the agency is successful, then the complainant must
prove, by a preponderance of the evidence, that the legitimate reason(s)
proffered by the agency was a pretext for discrimination. Id. at 256.
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Service Board
of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
We find that the agency articulated legitimate, nondiscriminatory reasons
for its actions. The record reflects that the agency initiated an inquiry
because complainant had allegedly made a number of statements that were
considered offensive or inappropriate by several employees. The Human
Resources Specialist was assigned to conduct the inquiry because she
served complainant's office. Agency officials attested that complainant
was ultimately removed from his probationary SES position, despite
their determination that he had not necessarily committed harassment,
because he had exhibited poor communication and leadership during the
short time he held the position. The Human Resources Official noted
that leadership is an Executive Core Qualification for anyone in an
SES position. The Deputy COO testified that she recommended removing
complainant for poor leadership because complainant had made derogatory
remarks about staff members, made inappropriate remarks in the workplace,
and did not take responsibility for trying to remedy any of the problems
he created. The COO also indicated that he was disappointed in the way
complainant chose to handle the situation.
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. We find that complainant failed to provide any evidence
of pretext in the record. On appeal complainant argues that the agency
did not follow proper procedures during the inquiry and essentially used
the investigation to terminate him and commit sex-based discrimination.
However, agency officials testified that the proper procedures were
followed, and we note that complainant acknowledged making the majority of
comments that were considered inappropriate by his employees. Although
complainant challenges the credibility the agency officials' testimony,
we note that he retracted his request for a hearing, and the Commission
is limited to a review of the record evidence. As a neutral party, we
are not persuaded, based on the record of investigation and statements
submitted on appeal, that complainant has shown that the agency's
articulated reasons for its actions were a pretext for discrimination.
Furthermore, we find that the record is devoid of any evidence that
the agency's actions were motivated by discriminatory animus or a
retaliatory motive.
Accordingly, based on a thorough review of the record, including the
evidence not specifically addressed herein, the agency's final decision
finding no discrimination is AFFIRMED.
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
March 25, 2008
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
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0120064503
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064503