0120122077
10-03-2012
Eric C. Kolodzne, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Eric C. Kolodzne,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120122077
Hearing No. 420-2011-00182
Agency No. ATL110231SSA
DECISION
Complainant filed an appeal from the Agency's March 14, 2012, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Benefits Authorizer under the Agency's Federal Career Intern Program at the Southeast Program Service Center in Birmingham, Alabama.
On February 19, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), color (brown), sex and reprisal when he was terminated from his position during his probationary period.
At the conclusion of the investigation, the Agency provided Complainant 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 Complainant's objections, the AJ assigned to the case granted the Agency's November 21, 2011 motion for a decision without a hearing, and issued a decision by summary judgment in favor of the Agency on March 1, 2012.
The AJ determined that the evidence developed during the investigation showed that Complainant started working for the Agency in March 2009 with a two-year excepted service appointment under the Federal Career Intern Program. He remained in that position until his employment was terminated in November 2010.
Complainant's second-level supervisor (African American female) made the decision to terminate him. She stated that she terminated him because of excessive internet usage. Complainant was first observed by his supervisors playing games and watching videos in June 2010. Complainant was warned about his excessive usage on two occasions by his supervisor. Because of the observation that Complainant was using the internet excessively, management requested that the Agency run a report on his computer usage. The report of Complainant's usage, which was completed in September 2010, found he accessed adult or sexually explicit web sites, played games, and accessed other sites on the internet throughout the day. The report covered June 26-September 10, 2010, and according to the termination letter, noted that Complainant made 407,528 requests and visited 23,003 different web pages during that time period. The report also noted that Complainant's internet usage was throughout the day, and not just on his authorized break times. Agency policy requires employees to limit their internet use for non-work purposes on Agency computers.
Although he alleged reprisal when he was terminated, Complainant had no previous participation in the EEO complaint process. However, in July 2010, Complainant sought a transfer, alleging that his supervisors were harassing him by not evaluating his work accurately, making misstatements and singling Complainant out for heightened scrutiny. At the time, however, Complainant did not allege this treatment was because of his race, sex, or color, or any other discriminatory factor.
Based on this evidence, the AJ found that Complainant failed to establish a prima facie case on any basis of discrimination alleged. The AJ noted that Complainant did not show that anyone else was treated differently. Moreover, even assuming that Complainant could establish a prima facie case, the AJ found that Complainant failed to show that the Agency's proffered legitimate, non-discriminatory reasons for his termination were a pretext for discrimination.
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. The instant appeal followed.
The instant appeal followed. In his appeal, Complainant argues he was not disciplined prior to his termination, and that in October 2010, his summary rating on his performance appraisal was "successful contribution." Complainant states he was not warned about inappropriate internet usage, Complainant denies accessing inappropriate or sexually explicit information. Complainant also relies on an unsigned affidavit of a co-worker that stated someone else used the internet more than Complainant.
In response, the Agency points out that the person who did not sign the affidavit did not want it to be used, and that Complainant did not show that management was aware of the other worker's internet usage or that the person was also under the intern program. The Agency also points to the computer usage report on Complainant that established his excessive and inappropriate internet usage.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
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). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review of the record, the Commission finds that even assuming Complainant could establish a prima face case, he has not shown, by a preponderance of the evidence, that the Agency's reasons were a pretext for discrimination. The undisputed evidence of record establishes that management had significant concerns about Complainant's internet usage - enough to prompt a report. That computer usage record establishes Complainant's excessive and inappropriate internet usage during work hours. Given the record as a whole, we find that the Agency's reasons for its actions were supported by the record and not a pretext for discrimination or unlawful retaliation. While we note that on appeal Complainant disputes or tries to explain away some of the findings in the report of his computer usage, there is no evidence that management fired him for a discriminatory reason rather than its reliance on that report.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
October 3, 2012
__________________
Date
2
0120122077
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122077