Stephon C. Lightener, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionOct 13, 2009
0120081197 (E.E.O.C. Oct. 13, 2009)

0120081197

10-13-2009

Stephon C. Lightener, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Stephon C. Lightener,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120081197

Hearing No. 460-2007-00096X

Agency No. DAL-06-2342-SSA

DECISION

On January 8, 2008, complainant filed an appeal from the agency's December

13, 2007 final order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 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 order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Social Insurance Specialist, Claims Representative Trainee at the

agency's Houston Northwest Texas Field Office facility in Houston, Texas.

Complainant was hired under the agency's Federal Career Intern Program

(FCIP) and was employed with the agency from June 28, 2004 through June

28, 2006. Complainant signed a statement on his start date indicating

that he understood that this was an excepted service position not

to exceed two years and that he could be terminated at any time.

Complainant also indicated by signing the statement that he understood

that this position could be converted to a career-conditional or career

permanent appointment upon successful completion of the internship.

On June 5, 2006, complainant was informed that his internship would not

be converted into a career permanent or career-conditional appointment

and his FCIP internship would expire on June 26, 2006.

On September 13, 2006, complainant filed an EEO complaint alleging that

he was discriminated against on the bases of race (African-American), sex

(male), color (medium brown), parental status (married with children),

and disability (gout in both feet) when his employment was terminated

during his FCIP appointment, effective June 26, 2006.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. Over the complainant's objections, the AJ assigned

to the case granted the agency's July 10, 2007 motion for a decision

without a hearing. The AJ issued a decision without a hearing on August

16, 2007 finding that complainant failed to prove that he was subjected

to discrimination as alleged.

In her decision, the AJ initially noted that complainant was advised by

his EEO Counselor and later by the AJ during a pre-hearing conference

call that parental status was not covered by the statutes prohibiting

employment discrimination. The AJ found that the Commission does not have

jurisdiction over that basis and declined to address that issue. Next,

the AJ found that complainant failed to establish a prima facie case of

discrimination on the basis of disability. Complainant claims to have

gout in both feet which causes him pain and difficulty walking. The AJ

found that there was no evidence that complainant was unable to walk

without an aid. The AJ found that complainant's job was administrative

in nature and did not require walking. Further, the AJ found that there

was no evidence complainant ever requested an accommodation or that he

needed one. The AJ found that complainant failed to offer sufficient

evidence establishing a prima facie case of disability discrimination.

Furthermore, the AJ found that complainant failed to offer any facts

which would demonstrate that he was subject to an adverse employment

action giving rise to an inference of disability discrimination.

As to complainant's race, color, and sex discrimination claims, the AJ

found that complainant had also failed to establish a prima facie case

of discrimination. The AJ found that complainant failed to show that a

similarly situated co-worker outside his protected group was converted to

a career or career-conditional appointment. Notwithstanding complainant's

failure to establish a prima facie case of discrimination, the AJ found

that the agency had articulated legitimate, nondiscriminatory reasons

for its actions. The AJ found that complainant's supervisor (S1)

claimed that complainant was unable to satisfactorily perform his job.

The AJ found that S1's claim was supported by the record in the form

of performance reviews and management testimony. The AJ found that

complainant acknowledged that he had performance problems and that he

had difficulty with certain types of claims. Finally, the AJ found

that complainant had offered no evidence that the statistics produced

by the agency documenting his poor performance failed to accurately

reflect his work. The AJ found that complainant failed to show that the

agency's reasons were pretextual and as a result, failed to establish

that he had been discriminated against on the alleged bases.

The agency subsequently issued a final order adopting the AJ's decision

without a hearing. The agency found that complainant failed to prove

that he was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant initially claims that he has presented enough

evidence to establish a prima facie case of discrimination on the alleged

bases. Complainant states that he is a member of a protected class and

experienced an adverse action based on S1's hostility towards minorities.

Complainant claims that a co-worker outside his protected group was

converted to career or career-conditional despite falling asleep in class

and having attendance issues. Additionally, complainant claims that S1

made no effort to ensure that he was properly trained, failed to make

out a detailed special plan of improvement for complainant, and made no

extra effort to see if any modification of his training regime was needed.

Additionally, complainant, for the first time, puts forth allegations of

disparate impact and being subjected to a hostile work environment based

on his sex and race.1 Further, complainant claims that his termination

was handled improperly as he was not allowed to review his personnel

file, was not notified that he could have union representation present

at the termination interview, and was deprived of saying goodbye to

his co-workers. Furthermore, complainant claims that his complaint was

improperly handled by both the agency and the AJ. Finally, complainant

claims that the agency has a history of discriminatory behavior against

black males. In support, complainant points to a settlement reached

in a 2002 race discrimination class action suit involving the agency's

headquarters in Baltimore, Maryland. Complainant asks that the case be

remanded back to the AJ for a hearing.

In response, the agency claims that complainant has failed to establish

a prima facie case of discrimination on the alleged bases. The agency

claims that even had complainant established a prima facie case of

discrimination on the alleged bases, it has articulated legitimate,

nondiscriminatory reasons if its actions, specifically, complainant was

unable to satisfactorily perform his job. In support, the agency cites

complainant's performance reviews and statements from complainant's

supervisors. The agency claims that no probative evidence exists

showing that complainant was discriminated against on the alleged bases.

Finally, the agency claims that the agency and the AJ properly handled

complainant's discrimination complaint. Accordingly, the agency asks

that we affirm the final order.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ's legal and

factual conclusions, and the agency's final order adopting them, de novo.

See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from

an agency's final action shall be based on a de novo review . . ."); see

also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)

(providing that an administrative judge's "decision to issue a decision

without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed

de novo"). This essentially means that we should look at this case

with fresh eyes. In other words, we are free to accept (if accurate)

or reject (if erroneous) the AJ's, and agency's, factual conclusions and

legal analysis - including on the ultimate fact of whether intentional

discrimination occurred, and on the legal issue of whether any federal

employment discrimination statute was violated. See id. at Chapter 9,

� VI.A. (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").

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. The Commission's

regulations allow an AJ to issue a decision without a hearing when

he or she finds that there is no genuine issue of material fact.

29 C.F.R. � 1614.109(g). This regulation is patterned after the summary

judgment procedure set forth in Rule 56 of the Federal Rules of Civil

Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exists

no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, an AJ should not rule in favor of one party without holding

a hearing unless he or she ensures that the party opposing the ruling

is given (1) ample notice of the proposal to issue a decision without

a hearing, (2) a comprehensive statement of the allegedly undisputed

material facts, (3) the opportunity to respond to such a statement, and

(4) the chance to engage in discovery before responding, if necessary.

According to the Supreme Court, Rule 56 itself precludes summary

judgment "where the [party opposing summary judgment] has not had the

opportunity to discover information that is essential to his opposition."

Anderson, 477 U.S. at 250. In the hearing context, this means that the

administrative judge must enable the parties to engage in the amount

of discovery necessary to properly respond to any motion for a decision

without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

Disparate Treatment

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 or

she 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). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. 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). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

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);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In the instant case, the agency has articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, S1 claims

that that complainant was unable to satisfactorily perform his job.

Report of Investigation (ROI), Ex. 9, S1's Aff. at 1-2. S1 claims that

complainant was notified of his performance throughout his employment.

Id. at 2. S1 claims that she discussed complainant's performance

and progress with him three times in 2005 and he was reviewed once in

2006 by his mentor while S1 was on maternity leave. The record reveals

that in each review, complainant was issued a memorandum explaining the

number of errors committed for each type of claim and instructions for

improvement. Id. at 2-3. Further, S1 claims that on several occasions

she had additional discussions with complainant regarding errors he had

committed or other performance issues. Id. While S1 was out on maternity

leave, complainant's acting supervisor (S2) claims that complainant

"struggled and did not appear to have a strong grasp of the technical

aspects of the cases." ROI, Ex. 12, S2's Aff. at 2. Additionally, S2

claims that complainant did not improve during that period despite having

access to any experienced claims representative or management official

for assistance. Id. S1 claims that she consulted with two other members

of management and it was decided that complainant's position would not

be renewed because he was unable to perform the duties of the position.

ROI, Ex. 9, S1's Aff. at 4.

As to the co-worker outside complainant's protected group who was

converted to career or career-conditional, S1 claims that she was

counseled each time for her actions and those issues were not terminable

offenses. ROI, Ex. 9, S1's Aff. at 2. Further, S1 claims complainant was

not treated differently because complainant was "simply unable to do his

job and was terminated based on his unsatisfactory performance of work."

Id.

Regarding his parental status claim, complainant claims that his

third-line supervisor (S3) was not happy when he called in to report that

he would be arriving late or would be out because he had to care for

his daughter. Complainant claims that S3 made comments such as "can't

your wife do it; we really need you to come in." Complainant claims that

S3 then became cold and began treating him differently. We note that

although Title VII does not prohibit discrimination based on marital or

parental status, it does prohibit employers from treating men and women

differently with regard to such status.2 See EEOC Enforcement Guidance:

Unlawful Disparate Treatment of Workers with Caregiving Responsibilities,

at 10-11 (May 23, 2007). S3 denies making comments about complainant's

absences or that she was unhappy about the nature of complainant's

absences. Further, S3 claims that as manager she inquires about the

reasons for absences for all employees.

Because the agency has proffered legitimate, nondiscriminatory reasons

for the alleged discriminatory event, complainant now bears the burden

of establishing that the agency's stated reasons are merely a pretext

for discrimination. Shapiro v. Social Security Administration, EEOC

Request No. 05960403 (December 6, 1996). Complainant 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)).

Complainant claims that his performance was no less satisfactory than any

other trainee and that he made common mistakes that all trainees made.

Complainant claims that S1 had personal animosity towards him fueled by

his race, sex, and disability. Further, complainant claims that he had

many different mentors which added to his difficulty. He claims that as

a trainee he feels management had an obligation to assist him in learning

his job and that during his performance reviews, he was given confusing

and erroneous information. He claims that he was always told that his

work was about where a trainee's should be and he was never placed on

an improvement plan. Finally, complainant claims that he was not given

adequate warning or opportunity to improve his performance and that he

feels he never had a fair chance of succeeding under S1.

In spite of complainant's claims that he performed his job satisfactorily,

the record reveals that management documented and informed him of his

performance deficiencies. Complainant acknowledges he made mistakes,

however he believes he received inadequate training. Complainant failed

however to show that he received less training or fewer opportunities

to improve than any co-worker who was elevated to a career or

career-conditional position.

Construing the evidence in the light most favorable to complainant,

complainant has failed to show by a preponderance of the evidence

that the agency's reasons were pretext for prohibited discrimination.

We note that even assuming S3 made the alleged comments regarding

complainant's leave requests, complainant produced no evidence that

S3 ever denied complainant's leave requests to care for his daughter.

Further, complainant has failed to show any connection between the

comments and management's decision to not appoint him to a career or

career-conditional position. We find that aside from complainant's bare

assertions, the record is devoid of any persuasive evidence that could

establish pretext or discriminatory animus on the part of the agency.

We further note that the agency has broad discretion to set policies

and carry out personnel decisions, and should not be second-guessed

by the reviewing authority absent evidence of unlawful motivation.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259;

Vanek v. Department of the Treasury, EEOC Request No. 05940906 (January

16, 1997). At all times, the ultimate burden of persuasion remains with

complainant to demonstrate by a preponderance of the evidence that the

agency's reasons were not the real reasons, and that the agency acted

on the basis of discriminatory animus. Complainant failed to carry

this burden.

The Commission finds that the AJ's decision without a hearing was

appropriate, as no genuine issue of material fact is in dispute.3 See

Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,

2003).

We AFFIRM the agency's final order finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

10-13-2009__

Date

1 As complainant failed to raise these issues at any time during the

processing of his EEO complaint prior to this appeal, we find that

they are not properly before us and decline to address these issues on

appeal.

2 Executive Order 13152 (issued May 2, 2000) and the agency's EEO policy

provide additional protection from discrimination based on parental

status. Pursuant to those policies, the agency issued a separate decision

regarding complainant's parental status discrimination claim with no

further avenues for appeal. We have no jurisdiction over the basis of

"parental status."

3 Contrary to complainant's assertions on appeal, the Commission finds no

evidence in the record to suggest that the AJ's handling of complainant's

case was improper. We find that the record was adequately developed for

the AJ to issue a decision without a hearing.

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0120081197

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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