03990079
01-27-2000
Petitioner, )
Manuel Alvarez v. Social Security Administration
03990079
January 27, 2000
Manuel Alvarez, )
Petitioner, )
) Appeal No. 03990079
v. ) MSPB No. NY-0752-97-0002-I-1
)
Kenneth S. Apfel )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
INTRODUCTION
On May 3, 1999, petitioner timely filed a petition with the Equal
Employment Opportunity Commission for review of the final decision of
the Merit Systems Protection Board issued on April 6, 1999, concerning
an allegation of discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Board
found that the Social Security Administration (agency) had not engaged
in discrimination as alleged by petitioner. For the following reasons,
the Commission concurs with the Board's decision.
ISSUE PRESENTED
The issue presented herein is whether the Board's determination that
petitioner failed to prove that the agency discriminated against him
based on sex and reprisal constitutes a correct interpretation of the
applicable laws, rules, regulations, and policy directives, and is
supported by the record as a whole.
BACKGROUND
Petitioner, formerly employed by the agency as a Branch Manager,
GS-105-13, was demoted to the position of Staff Assistant, GS-105-12,
effective September 1, 1996. He alleges that his demotion was based on
sex and reprisal. The agency, however, maintains that petitioner was
demoted for knowingly and willingly disobeying a directive issued to him
by his supervisor and engaging in repeated acts which were inappropriate
and unacceptable for a management official.
The evidence in the file indicates that petitioner was contacted by
his supervisor on January 30, 1996 concerning allegations that he
(petitioner) was giving special treatment to student volunteers, all
of whom were female seniors in high school, assigned to his office.
These allegations also accused petitioner of possible improper behavior.
During the conversation, petitioner told his supervisor that nothing
improper was taking place and that he had scheduled a meeting with the
AFGE on-site representative to discuss the matter.
The next day, January 31, the two spoke again. During this conversation,
petitioner informed his supervisor that the AFGE representative had
given him (petitioner) a memorandum detailing his concerns regarding
his (petitioner's) relationship with several student volunteers.<1> In
the memorandum, the AFGE representative stated that certain actions on
petitioner's part were projecting negative impressions to and causing
discomfort among staff members. Upon learning of the contents of the
memorandum, petitioner's supervisor instructed him not to discuss the
matter further with the anyone, including the AFGE representative,
until the two of them (supervisor and petitioner) could agree on an
appropriate response.
Notwithstanding his supervisor's instructions to the contrary, petitioner,
on January 31 and February 1, interviewed each member of the AFGE
bargaining unit, showed them the AFGE representative's memorandum, and
obtained their signatures on a statement that he had drafted in rebuttal
of the representative's statements. According to the agency, petitioner's
disobedience, which had other ramifications<2>, exemplified actions
which were inappropriate and unacceptable for a management official.
According to the agency, the AFGE representative had contacted petitioner,
on more than one occasion, to discuss the seriousness of his behavior
with the student volunteers and the adverse impact it was having on
his staff. Notwithstanding these discussions, petitioner continued to
engage in the behaviors and failed to bring the matter to the attention
of his supervisor causing the agency to question his ability to manage
his office.
The agency cited to other examples, dating back to February 1995,
regarding petitioner's inability to supervise effectively his staff,
his repeated refusals to follow explicit instructions and support agency
policies, his failure to consider how his actions would impact his staff,
and his neglect in keeping his supervisor informed of the problems and
important issues which affect his office. Those examples include, but
are not limited to, the following: (1) complaints from staff members
regarding petitioner's lack of professionalism; (2) petitioner going
beyond the scope of his authority to requisition telephone equipment for
another office; (3) petitioner working credit hours, on many occasions,
without gaining prior approval as required; (4) failure to remove a
painting and calender which contained scenes that some staff members found
objectionable; (5) entering the premises, violative of agency policy,
while serving a suspension; and (6) making negative statements to his
staff which undermined his supervisor's authority.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board regarding
the allegation of discrimination based on sex and reprisal constitutes
a correct interpretation of applicable law, rule, regulation or policy
directive and is supported by evidence in the record as a whole.
29 C.F.R. �1614.305(c).
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corporation v. Green. 411 U.S. 792 (1973). For petitioner to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. Id. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
In order to establish a prima facie case of discrimination for an
allegation of reprisal, petitioner must show: (1) that he engaged in
protected activity; (2) that the alleged discriminating official was aware
of the protected activity; (3) that he was disadvantaged by an action
of the agency contemporaneous with or subsequent to such participation;
and (4) that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), aff'd, 545
F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,
86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
a legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In
such cases, the inquiry shifts from whether the petitioner has established
a prima facie case to whether he has demonstrated by preponderance of the
evidence that the agency's reasons for its actions merely were a pretext
for discrimination. Id.; see also United States Postal Service Board
of Governors v. Aikens, 460 U.S. 711, 714-717 (1983). In this case,
we find that the agency has articulated legitimate, nondiscriminatory
reasons or its actions. Specifically, the agency stated, as previously
discussed, that petitioner's demotion was based on his penchant for not
following his supervisor's directives and engaging in acts which were
inappropriate and unacceptable for a management official.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, petitioner now bears the burden
of establishing that the agency's stated reason is merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Petitioner can do this by
showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
Like the Board, we find that petitioner has failed to meet this burden.
In this attempt to prove sex and reprisal discrimination, petitioner did
not submit any evidence. Instead, he offered vague assertions which
alleged that the demotion may have been based on unlawful employment
discrimination. His appeal letters and accompanying documents focus on
the Board's credibility findings and decisions regarding the admission
of evidence as opposed to discrimination issues. As such, we find that
petitioner has failed to prove that the reasons proffered by the agency
constitute an effort to mask discriminatory animus.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the Board's final
decision of no discrimination. The Commission finds that the Board's
decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
STATEMENT OF RIGHTS - ON APPEAL
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
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:
Jan 27, 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 of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), the MSPB and the agency on:
________________________ __________________________
1 Petitioner's disturbing behavior included transporting the students to
and from school and the office in his own private vehicle, allowing them
to use his private office, playing music in his office in their presence,
and allowing himself and a student to become the last two employees in
the office at the close of the work day.
2 By interviewing members of the AFGE bargaining unit regarding a
condition of employment without notifying the appropriate AFGE officials,
petitioner violated his contractual obligations. In addition, as a
manager, petitioner's conduct has to be fair and impartial at all times.
Interviewing staff members and having them affix their signatures to a
statement prepared by him could be perceived as intimidating.