01a55550
03-08-2006
Jerry Session, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Jerry Session v. Social Security Administration
01A55550
March 8, 2006
.
Jerry Session,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A55550
Agency No. 03-0333-SSA
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful 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 appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission vacates
and remands the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as an Attorney Advisor, GS-0905-12 at the agency's Syracuse, New York
facility. Complainant sought EEO counseling and, subsequently, filed
a formal complaint on June 13, 2003, alleging that he was discriminated
against in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq., on the bases of race (Black)
and in reprisal for prior EEO activity when effective April 14, 2003,
he was terminated.
At the conclusion of the investigation, complainant was provided a copy
of the investigative file and informed of his right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. Complainant requested that the agency issue a
final decision.
In its final decision, the agency concluded that complainant failed
to establish a prima facie case of race discrimination, noting that
complainant failed to present evidence of similarly situated employees,
outside complainant's protected class, who were treated more favorably.
In addition, the agency concluded that complainant presented insufficient
evidence to establish that management's stated reasons for complainant's
termination was pretext for intentional discrimination. In addition,
the agency did not find racial motives in complainant's termination
since it concluded that the same management official who terminated
complainant also hired complainant.
With respect to complainant's retaliation claim, the agency concluded
that complainant failed to present sufficient evidence establishing a
causal connection between the prior EEO activity and the termination.
In addition, for reasons set forth above, the agency also found
insufficient evidence of pretext or retaliatory animus.
Complainant raises similar arguments on appeal to those previously raised.
The agency stands on the record and requests that we affirm its final
decision.
After a thorough review of the record, we find that the evidence is
insufficient to allow a determination on the merits of complainant's
claims of discrimination under any of complainant's alleged bases.
The Commission's regulations and the EEOC Management Directive for 29
C.F.R. Part 1614 require agencies to develop a complete and impartial
factual record. See 29 C.F.R. 1614.108(b); EEOC Management Directive 110
(MD 110), Chapter 6, page 6-1 (November 9, 1999).
The record shows the following. In May 2000, complainant received
a temporary appointment as an Attorney-Advisor in the Office of
Hearings and Appeals, in Syracuse, New York, after interviewing with
the Processing Group Supervisor (Caucasian, no prior EEO activity) (DN).
DN was complainant's first-line supervisor from May 2000 through November
2001, when MW (Caucasian, no prior EEO activity) became complainant's
first line supervisor. The record shows that during the interview
process, complainant met with two administrative law judges and the
Hearing Office Director (RMO) (Caucasian) who served as complainant's
second-line supervisor.
Complainant asserts that when he was hired, DN implicitly warned him
of racism within the Hearing Office. Complainant further asserts
that RMO was not involved in the decision to hire him. In addition,
complainant asserts that he detected hostility from RMO at the outset
of their employment relationship.<1>
Complainant also asserts that in May 2002, he was notified by MW that his
employment would be terminated. Complainant asserts that the responsible
management officials told him that he was only hired to address the
backlog of cases and that since there was no longer a backlog, his
services were no longer needed.<2> Complainant also asserts that after
seeking the help of the Union, MW rescinded the termination. Complainant
claims that MW proposed complainant's termination after complainant
provided testimony in a co-worker's EEO complaint. Complainant also
claims to have initiated EEO counseling during this period.
Complainant asserts that shortly after seeking permanent employment
status, on March 31, 2003, RMO notified him of his termination.
RMO asserts that complainant was terminated for falsifying his employment
history in his employment application. Specifically, RMO asserts that an
investigation revealed that complainant was suspended from the practice of
law from January 12, 1996 through May 7, 1999, contrary to his resume.
However, complainant asserts that DN was informed of the suspension
prior to hiring complainant and that this issue is pretext for racial
discrimination and retaliation.
In support of pretext, complainant points to the fact that the undisputed
record shows that RMO and an administrative law judge (JT) (Caucasian)
learned of complainant's suspension, the latest, in April 2002, and that
there is no explanation articulated by RMO as to why she waited a full
year to terminate complainant.
In addition, complainant argues that important documents are missing
from the record to support his pretext argument. We agree and
find the following relevant documentation missing from the record:
(1) documentary evidence of complainant's April 2002 EEO activity;
(2) documentary evidence of the April/May 2002 proposed termination;
(3) documentary evidence of the April/May 2002 decision to rescind the
proposed termination, including any Union documents; (4) complainant's
official personnel file allegedly located in the Region II office<3>; (5)
complainant's application documents, including "long form" application;
(6) all similarly situated employees' application documents, including
"long form" application;<4> (7) similarly situated employees' Region II
personnel files; (8) written policy and/or procedure for determining what
is placed in an employee's "7B file," as well as the policy regarding
discarding/removing documents from such file;<5> (9) DN's interview
notes;<6> (10) documentary evidence related to the Chief Administrative
Judge's (CJ) investigation of complainant's termination;<7> and (11)
transcript of the hearing held by the New York State Unemployment
Insurance Appeal Board related to complainant's claim for unemployment
insurance.<8>
The record supports complainant's assertion that he provided DN with
an accurate resume in July 1999.<9> Complainant also asserts that DN
contacted complainant again in March 2000, and requested another resume
with little notice. Complainant asserts that he explained to DN that
he would only be able access an older resume in the time DN needed it.
DN allegedly assured complainant that he would not use this resume for
any official purpose.
With respect to racial animus, the record supports the finding that
complainant was the first and only Black attorney hired to work at
the Syracuse office. In addition, only two other Black employees had
held positions in the office's history. The undisputed record also
shows that all three Black employees were terminated. In addition,
the undisputed record shows that all non-Black temporary employees,
with satisfactory performance reviews, were regularly converted to
permanent employment status. The record also supports the contention
that RMO held racial animus toward Blacks. A witness (SR) (Caucasian)
testified that several years prior to the relevant time frame, she asked
RMO why no African-Americans worked in the office and RMO's response was
"we don't need people like that working here, they only cause problems."
SR testified to additional negative racial comments made by RMO regarding
Black people.
Complainant also argues that important documents supporting the claim
that RMO held racial animus are missing from the file. We agree and
find the following documents missing: (1) Complainant's performance
appraisals/evaluations for the period May 2000 to April 2003;<10> and
(2) documentation of similarly situated non-Black temporary employees'
employment status history.<11>
Even with so many relevant documents missing from the record, we note
that the record, as a whole, supports a prima facie case of racial
discrimination and retaliation. However, without additional information,
we are unable to fully assess the credibility of the witnesses, as well
as the reliability of the documentary evidence. Accordingly, we vacate
the agency's finding of no discrimination, and remand this matter for
a supplemental investigation in accordance with the following Order,
and the applicable EEOC Regulations.
ORDER
The agency is ordered to conduct a supplemental investigation, which
shall include the following actions:
The agency shall ensure that the investigator compiles the following
documentary evidence:<12> (1) documentary evidence of complainant's April
2002 EEO activity; (2) documentary evidence of the April/May 2002 proposed
termination; (3) documentary evidence of the April/May 2002 decision to
rescind the proposed termination, including any relevant Union documents;
(4) complainant's official personnel file allegedly located in the Region
II office; (5) complainant's application documents, including the "long
form" application; (6) all similarly situated employees' application
documents, including the "long form" application; (7) similarly situated
employees' personnel files allegedly located in the Region II office;
(8) the agency's written policy and/or procedure for determining what
is placed in an employee's "7B file" as well as the policy regarding
discarding/removing documents from such file; (9) DN's interview notes;
(10) documentary evidence related to the Chief Administrative Judge's
(CJ) investigation of complainant's termination; (11) the transcript of
the hearing held by the New York State Unemployment Insurance Appeal
Board related to complainant's claim for unemployment insurance; (12)
Complainant's performance appraisals/evaluations for the period May 2000
to April 2003; and (13) documentary evidence showing employment status
(i.e., temporary or permanent) of all non-Black similarly situated
temporary employees' from the period 2000 through 2003.
The agency shall ensure that the investigator obtains affidavits from: (1)
the management official who has information with respect to the agency's
policy in retaining personnel files, and the contents of the personnel
files; (2) the witness (ER) previously identified by complainant who
allegedly has direct knowledge regarding the existence and location of
complainant's "long form" application;<13> and (3) all agency management
officials and union officials with information relevant to the proposed
termination of complainant in April 2002. The investigator shall
also obtain any other affidavits not specifically requested in this
Order, and consistent with this opinion, which may be relevant herein.
All affidavits must be sufficiently detailed and address each claim
raised by complainant.
The agency shall ensure that the investigator complete a supplemental
investigation within one-hundred and twenty (120) calendar days of the
date this decision becomes final. Thereafter, the agency shall provide
complainant, within thirty (30) calendar days from the date the agency
completes the supplemental investigation, an opportunity to respond
to the supplemental investigative report. The agency shall then take
any action appropriate and consistent with complainant's response, and
issue a new final agency decision within thirty (30) calendar days of
complainant's response or, if complainant fails to respond, within thirty
(30) calendar days following the last day complainant would have been
permitted to respond. Copies of the completed supplemental investigation
and new final agency decision must be submitted to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 8, 2006
__________________
Date
1 Contrary to the Final Agency Decision (FAD), there is insufficient
evidence in the record to show that RMO was involved in hiring
complainant.
2 The record supports the finding that a backlog of cases existed in
April/May 2002 and complainant, at all times during his employment,
performed excellent work.
3 The record supports the finding that similarly situated employees were
required to submit a "long form" application. Complainant claims that
his suspension is acknowledged on this form and should be located in the
Region II file. However, complainant asserts that RMO has access to this
file. Accordingly, if such file is not produced by the agency, the agency
shall obtain an affidavit from the person responsible for maintaining
such file with an explanation of why the file was not produced.
4 The record supports the finding that all Attorney Advisors, as well
as administrative law judges were required to fill out what has been
characterized as a "long-form" application form, which includes a request
for the applicant's address history dating back 10 years.
5 The EEO investigator previously requested this information from the
agency.
6 See DN's affidavit.
7 The EEO investigator previously requested this information from the
agency.
8 Complainant asserts that in her attempt to deny complainant unemployment
benefits, RMO provided false testimony that is inconsistent with testimony
provided in this matter.
9 See Exh. 22. DN stated during the informal stage that complainant had
provided him with a resume in July 1999 and provided a description of
the July 1999 resume which supports the contention that the July 1999
resume and the March 2000 resume were different.
10 The EEO investigator previously requested this information from the
agency.
11 Such documentation should include an explanation of which employees
were promoted to permanent status and the reasons for denying permanent
status to any employee.
12 If any document requested by the EEO investigator is not produced,
the agency shall provide an affidavit from the responsible management
official explaining the reasons for not producing the document(s).
13 The EEO investigator was provided ER's home and cell phone numbers
but did not succeed in locating him. We believe this witness may have
critical testimony in support of complainant's pretext argument, and,
accordingly, the EEO investigator should make another attempt to locate
him.