Petitioner, )

Equal Employment Opportunity CommissionJan 27, 2000
03990079 (E.E.O.C. Jan. 27, 2000)

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.