0120140594
06-14-2016
Vance C.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vance C.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120140594
Hearing No. 550-2011-00493X
Agency No. SF-11-0290-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 4, 2013 final order concerning an equal employment opportunity (EEO) complaint claiming 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Benefit Authorizer at the Agency's Western Program Service Center, Module 6, in Richmond, California.
On March 3, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), and age (over 40) when:
1. on January 10, 2011, the Module Manager (Manager) was discourteous and disrespectful towards him during an altercation over a chair when he yelled at him. The Manager confronted Complainant in the hallway and continued yelling at him; and
2. on March 3, 2011, his participation in the PCO Development Leadership Program was affected when he was pulled from a teaching assignment which was the result of the January 10, 2011 altercation referenced in claim 1.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On September 3, 2013, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. The Manager, a white male older than Complainant, was Complainant's second level supervisor, and the Operations Manager, an African-American female approximately the same age as Complainant, was Complainant's third level supervisor. Complainant's immediate supervisor, an African-American female, was younger than Complainant. Complainant requested a new chair from his supervisor. Complainant alleged that one day or two days before January 10, 2011, he took a chair from the supply area which he thought belonged to him, and moved it to his work station. Complainant did not ask whether it was acceptable to do so. Complainant was informed by a supervisor that the chair belonged to the Manager. Complainant's co-worker also told Complainant that the chair should be returned. The chair was one of two chairs which had been acquired for the Manager's office.
On January 10, 2011, Complainant received a computer generated message from the Manager asking Complainant if he had the chair. The message was repeated several times. According to Complainant, he replied that he "wasn't sure." Complainant then went to lunch. The Manager continued to inquire about the chair. However, Complainant did not respond. After Complainant returned from lunch, he received another computer generated message from the Manager, once again asking Complainant about the location of the chair. Instead of responding to the Manager, Complainant had a co-worker return the chair. After the co-worker returned the chair, she told Complainant that the Manager wanted to meet with Complainant personally about his response to his repeated requests that the chair be returned.
According to Complainant, he apologized to the Manager about taking the chair. The Manager advised Complainant that the issue was not about his having taken the chair but rather how Complainant responded when asked to return the chair; how Complainant was unable to follow the Manager's instructions; and how Complainant did not respond in a responsible and timely manner. Complainant was offended by the manner in which the Manager rebuked him for his inability to follow directions, by the Manager's tone, and by his having been treated like he did not know anything. The AJ determined it was undisputed that the Manager was angry and that Complainant became angry over the way he was rebuked.
Further, Complainant sought to excuse himself from the meeting and alleged that the Manager followed after him and insisted that they finish their conversation. Complainant said he reported the matter to his supervisor and indicated to her that he was going to the union office, assertions that the supervisor denied. Complainant also alleged that the Manager met him at the elevator and told him that he had made a mistake in "talking back to him."
The Manager determined that Complainant's defensiveness and behavior towards him warranted corrective action and initiated a process which resulted in Complainant's reprimand. After an investigative, discussion with Complainant's supervisor and other witnesses, and a fact finding meeting with Complainant on February 3, 2011, the reprimand was issued for Complainant's failure to follow instructions. The Operations Manager concurred with the reprimand.
In his affidavit, the Manager denied yelling at Complainant during the disagreement on January 10, 2011. Specifically, the Manager stated "I did not yell at the Complainant. He did yell at me, used profanity, and lost control of his emotions during the incident. He was in a very agitated state. He has trouble controlling his emotions when he is unhappy about what is going on, if he is being questioned about his work or if he feels he is being criticized." The Manager further stated that the issue "was not the fact the Complainant took the chair, it was the fact that he failed to return the chair and follow managerial directives. At times, he seems to act as though he needs to follow only the rules he wants to follow while ignoring others. One assistant module manager and I told him to return the chair repeatedly over a period of two days and he ignored the directives."
The Manager stated that he is very direct when dealing with people and "all of my employees know that...I do not recall using any words with the Complainant on January 10, 2011, that was any different from ones I would use with other employee during the course of the workday. I did not speak to Complainant as if he was a child, and I did not belittle him."
With respect to Complainant's allegation that the Manager does not like anyone "with a voice," and that African-American men intimidate him, the Manager stated " I have promoted and rewarded many African American males, including an ex-Union president whose good BA work never got him promoted until I became his manager...I have given awards and promoted my fair share of African American men over the years."
Moreover, the Manager stated that he did not discriminate against Complainant based on his race, sex and age.
The Operations Manager stated that the February 3, 2011 fact finding meeting that the Manager conducted with Complainant and his union representative "was a chance for the Complainant to say what he was thinking at the time of the incident and perhaps explain his behavior." The Operations Manager stated that she was the concurring official that Complainant should be reprimanded for the January 10, 2011 incident. Specifically, the Manager stated "the disciplinary process was handled in accordance with the agency's policy, and I approved issuance of the Letter of Reprimand to the Complainant. I could have stopped it if I felt it was not necessary; however, this was at least the third time that the Complainant had been aggressive or used off color language with a supervisor. He did not receive a reprimand for those prior incidents. In this instance, I felt the letter of reprimand was warranted and approved its issuance." Furthermore, the Operations Manager stated that Complainant's race, sex and age were not factors in her decision to concur with the Manager's decision that Complainant be issued a Letter of Reprimand.
Regarding claim 2, the AJ noted that Complainant had been given a 120-day detail to an Agency Leadership Training program as a Post Entitlement Team Leader. The AJ noted that this assignment was a career enhancing opportunity for Complainant. The AJ noted, however, based upon Complainant's altercation with the Manager and the reprimand that Complainant received as a result, the Operations Manager decided to remove Complainant from this leadership assignment prior to the expiration of his detail. The Operations Manager believed it was warranted by the facts, and justified Complainant's premature removal from this leadership assignment.
The Operations Manager stated that Complainant was recommended for the development program by the Manager and his supervisor, and she supported his selection. The Operations Manager stated that Complainant "was one of three applicants for the program from Module 6. I felt Complainant needed to work on and develop his interpersonal skills and thought he could do so through this program." The Operations Manager stated that because Complainant performed well in the development program, his managers requested to assign him to a 120-day temporary promotion to the GS-10 Post Entitlement Team Leader (PETE) position as his first assignment. The Operations Manager stated that she approved the temporary promotion based on the Manager's desire to have Complainant fill-in for a Module 6 PETE who was out of the office for several months.
Further, the Operations Manager stated "I could have removed Complainant from the Western Development Program earlier due to the incident in January [2011], but chose to wait until he had received his Letter of Reprimand. His next detail was scheduled to be teaching and I did not feel it would have been appropriate to keep him in the program after his behavior on January 10, 2011 and the subsequent discipline he received as a result of that behavior...it was solely my decision to remove the Complainant from the development program. I instructed [Manager] to hold a meeting to inform the Complainant of his removal from the development program in person."
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if he had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
Complainant, on appeal, argues that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant states "why was I allowed to be treated in this degrading manner, talked to like an animal, not a man? Why this manager was allowed to yell at me and threatens me and no one has done anything to stop him...I want to appeal my case on the basic that nothing was proven by the agencies attorney that no discrimination took place, that [Manager's] behavior as a manager and the unprofessional manner in which he treats male employees of the African race."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. 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 actions. See 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
The AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 14, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120140594
2
0120140594
8
0120140594