0120152111
05-05-2017
Augustine P.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Augustine P.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120152111
Hearing No. 520-2012-00274X
Agency No. NY100843SSA
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 6, 2015 final order concerning his equal employment opportunity (EEO) complaint. He alleged 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
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative at the Agency's West Nyack facility in West Nyack, New York.
On November 10, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (Haitian), sex (male), age (55) and reprisal for prior protected EEO activity under Title VII when, on July 12, 2010, management subjected him to harassment (non-sexual) when he was informed that his work would be placed under 100% review.
The pertinent record shows that Complainant was one of two Blacks at the facility, which had 18 employees in the West Nyack office. Eleven of the 18 held the same position and grade as Complainant, GS-11 Claims Representative. Complainant's duties in the position of "Claims Representative" included interviewing claimants and the processing of official applications and necessary amendments for the public to receive government benefits.
On July 1, 2010, Complainant met with the Operations Supervisor, who was his supervisor, for an employee performance appraisal. During the meeting, the Supervisor told Complainant that he believed that Complainant was not properly following the required case processing procedures and that his work product contained errors. Complainant acknowledged that he processed a representative payee application with the mailing and residence address listed as "unknown." He stated that this was not an error because he did this to prevent future payments to the institution and when he was unable to obtain the whereabouts of the claimant. He claimed that this type of short cut had been taken by other employees in the office.
His Supervisor disagreed with Complainant's approach and pointed out that Complainant failed to follow the Agency's basic procedures. The Supervisor also told Complainant that the Supervisor believed that Complainant did not consult with the technical expert frequently enough. Complainant acknowledged that he had made some errors. The supervisor reportedly referred to Complainant as being "stubborn."
The record shows that the second-level supervisor believed that Complainant's errors were "egregious." In one instance, a remittance check payable to the Agency was addressed to Complainant. The check was discovered when the envelope was opened in the mailroom. Complainant disputes that he engaged in any wrongdoing.
The Supervisor advised Complainant that formal administrative measures would be implemented to improve work performance. On September 10, 2010, Complainant was placed on a Performance Assessment Plan ("PAP"), which outlined specific measures which management states were designed to assist Complainant and monitor Complainant's progress.
Two other employees were under review as of July 12, 2010. One was a Caucasian female, age 27, and the other a Black male, age 23. Both of the others under review were trainees, and not permanent employees at the GS-11 rank.
It is undisputed that Complainant was removed from the PAP on December 13, 2010, with no further personnel action taken by management. Both of the named responsible management officials retired from the Agency as of December 31, 2010.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant timely requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Over Complainant's objections, the AJ assigned to the case granted the Agency's September 12, 2012, motion for a decision without a hearing and issued a decision without a hearing on November 21, 2014. The AJ noted that in the instant case, it was undisputed that the Complainant successfully completed his PAP with no adverse action taken by management. The AJ found that there was no "relevant or objective evidence than can factually undermine the Agency's articulated reasons of record for placing the Complainant on a PAP which is the issue to be decided in the instant case."
In reaching his finding of no retaliation, the AJ considered Complainant's argument that the Agency "is legally obligated to do more than merely articulate its reasons" for initiating a process that could lead to an adverse action such as demotion or removal. The AJ found that Complainant failed to prove illegal harassment connected to any identified protected group when the Complainant was placed under a PAP. The AJ concluded that a reasonable person would not consider a supervisor's description of Complainant as "stubborn" "equates to a pervasive or severe comment which was connected to Complainant's race, sex, age or national origin.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
This appeal followed. Complainant did not submit a brief in support of his appeal.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (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").
First, we find that it was procedurally appropriate for the AJ to have issued a decision without a hearing on this record because the record has been adequately developed for summary disposition. Second, we find that there was no genuine issue of material fact, given the substantive legal and evidentiary standards that apply to the case.
This case involves a determination of whether the Agency subjected Complainant to a hostile work environment or disparate treatment based on his race, national origin, sex, age or because of reprisal when he was placed under an Agency PAP and his supervisor described him as "stubborn."
Title VII states that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . . . race, national origin or sex." 42 U.S.C. Section 2000e-16(a). Similarly, the Age Discrimination Act requires that federal agencies make all of its personnel actions free of age discrimination. To establish a claim of disparate treatment on the basis of race, national origin, sex, age, or reprisal, a complainant must show the agency took an adverse employment action against the complainant because of those factors. To show a hostile environment, Complainant would have to show that he was subjected to harassment based on his or her protected class and the harassment had the purpose or effect of unreasonably interfering with his or her work performance or creating an intimidating or hostile work environment.
Other than Complainant's allegations, there was no evidence to raise a genuine dispute of material fact with regard to the alleged claims. Looking at the evidence in the light most favorable to Complainant, there was insufficient evidence to warrant a hearing in this case. Further, Complainant has failed to support his allegations of being subjected to a hostile work environment and discrimination. For these reasons, we find that the AJ's decision was appropriate. The Final Order should be sustained.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order.
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 tends 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
May 5, 2017
__________________
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
0120152111
5
0120152111