Geoffrey P.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionNov 8, 20192019001898 (E.E.O.C. Nov. 8, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Geoffrey P.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019001898 Agency No. ATL-18-0541-SSA DECISION On February 11, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 8, 2019 final decision 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. BACKGROUND During the period at issue, Complainant worked as a Claims Representative, GS-11, at the Agency’s Columbus, Georgia Field Office. On May 17, 2018, Complainant filed the instant formal complaint. Complainant claimed that that the Agency discriminated against him based on national origin (Hispanic/Latino) and in reprisal for prior EEO activity when: 1. on May 18, 2018, he was issued a proposal to removal him from federal service;2 and 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 Complainant retired in lieu of removal effective May 31, 2018. 2019001898 2 2. management investigated his conduct, proposed suspending him, and then issued a proposal to removal him from federal service after rescinding the proposed suspension. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In its January 8, 2019 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part 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). 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). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. 2019001898 3 From September 2017 until Complainant’s retirement, which was effective May 31, 2018, the Operations Supervisor was Complainant’s first-line supervisor and the Assistant District Manager was his second-line supervisor. The District Manager was Complainant’s third-line supervisor. On March 29, 2018, Complainant activated a stun gun in the Columbus, Georgia Field Office. The Operations Supervisor (Caucasian) stated that she heard a popping sound from her cubicle and asked Complainant what had happened. Complainant explained that he was showing a colleague his stun gun. During the explanation, he activated the stun gun a second time. The supervisor responded that the stun gun should not be in the facility and instructed Complainant to remove it immediately. As Complainant was putting the stun gun away, an employee overheard Complainant stating, “wait until I get my Glock.” On April 3, 2018, the supervisor conducted a fact-finding interview with Complainant and his union representative. Complainant acknowledged he had brought the stun gun to work and activated it. Complainant also stated that he had the stun gun in his vehicle at that time. As a precautionary measure, the supervisor placed Complainant on administrative leave for the reminder of the day so he could remove the stun gun from the property. The supervisor then interviewed six other employees, who each attested to either hearing or seeing Complainant discharge the stun gun. In addition, several employees expressed concern for their safety to management based on the “Glock” statement, as well as Complainant’s subsequent questioning of his colleagues as to whether they feared him and his action in giving his colleagues back gifts that they had given him over the years. On April 27, 2018, the supervisor issued Complainant a proposed suspension for twenty-five (25) days based on his possession and activation of the stun gun in the office. The notice set out the factors that informed the supervisor’s decision to propose suspension as follows: (1) the seriousness of possessing a gun in a federal facility which was strictly prohibited in order to protect the safety of government employees and customers; (2) an incident that occurred in 2016 in which Complainant showed the stun gun to members of management and was instructed never to bring the weapon back to the office; and (3) Complainant’s two prior short-term suspension for failure to follow directives, lack of candor, and conduct unbecoming a federal employee. The notice also explained the proposal was not a decision and informed Complainant of his right to provide a response for consideration by the supervisor. Complainant stated his intention to speak with an attorney and pursue an EEO claim. At that time, Complainant went to his union representative and allegedly commented, “[t]his is why I need to get out of this office before I kill someone.” Thereafter, the union representative reported to the supervisor that Complainant had stated he might kill someone after he received the proposed suspension, and that she considered his threat credible. 2019001898 4 The same day, April 27, 2018, the supervisor called Complainant, who had left work, and informed him that he had been placed on administrative leave immediately and until further notice. The supervisor said she made the decision to place Complainant on administrative leave out of concern for the safety of other employees. The record reflects that the supervisor also had the locks on the office doors changed and requested additional security. She then rescinded the proposal to suspend and issue a proposal to remove based on her concern for the safety of employees and management. The District Manager (African-American) stated he supported her decision. Complainant alleged that he was treated differently because “others would have gotten a slap on the hand or a reprimand or admonition,” and that the Agency was trying to make an example of him because he was an older, disabled foreign-born Latino veteran. However, beyond these bare assertions, Complainant failed to prove, by a preponderance of the evidence, that his national origin or prior EEO activity played any role in the events at issue. The supervisor testified, without contradiction from Complainant, that no other employee in the office had engaged in similar misconduct. CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. 2019001898 5 Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 November 8, 2019 Date Copy with citationCopy as parenthetical citation