0120093071
07-18-2012
Joseph A. Singleton, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Joseph A. Singleton,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120093071
Agency No. ATL-08-0211-SSA
DECISION
On July 15, 2009, Complainant filed an appeal from the Agency's May 30, 2009, final decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely1 and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly determined that Complainant did not establish that he was subjected to unlawful discrimination, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Service Representative, GS-0962-08, at the Agency's District Office in Griffin, Georgia. On March 25, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the basis of reprisal for prior protected EEO activity arising under Title VII and the ADEA when, between August 2007 and December 2007:
1. he was continuously sent pop-up messages while conducting interviews, which management knew would interfere with his interviewing time;
2. a manager often called him into the office stating that she received complaints about his work, but she did not grant his request for the identities of the individuals who complained;
3. management harassed him in connection with the way he processed his work; and
4. management allowed his co-workers to determine when he took his breaks and lunch.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency found the facts of the case to be as follows: Complainant was the only Service Representative in the Griffin District Office, and as such he was responsible for conducting interviews with Agency claimants to obtain essential information about their claims. Complainant claimed that after he initiated EEO contact in another complaint, he began receiving "pop-up" messages (instant messages) from the District Manager at a rate of 3 to 5 per day, whereas before that he had received relatively few. He requested that the pop-ups cease but the District Manager advised him that she would continue to send them due to his delays in entering data into the system. The testimony of management officials was that Complainant received more pop-up messages than other employees because he was the only fully-trained Service Representative in the office, and because he failed to enter interview data in the computer system promptly, which resulted in inaccurate information regarding interview start times, waiting times, and customer service. The Agency noted that another employee, in training to be a Service Representative, also received pop-ups on work-related matters. It found that pop-ups were used to alert employees to the need to take appropriate action when deviations or problems were noted in the efficient provision of services. The messages were sent via the pop-up system to avoid interrupting the employee's interview with a claimant in person.
Complainant claimed he had been singled out in the workplace for erroneous accusations, and that the District Manager was "unprofessional" in her communications with him. He detailed four incidents in which he felt he had been unjustly accused of not following correct office procedures. He also testified that he had been denied the opportunity to work overtime on his workload. Complainant's supervisors each testified that they had engaged in discussions with Complainant regarding office procedures, and that overtime was assigned in accordance with which cases were designated as priorities. As to claim 4, Complainant claimed that on three instances he was unable to take his break or lunch in a timely fashion due to not being relieved of his front desk duties by his co-workers. Management officials testified that when alerted that no back-up had arrived, they would arrange for someone to relieve Complainant.
In its decision, the Agency found that Complainant had engaged in protected activity when he initiated EEO counseling on August 6, 2007, in a previously filed complaint.2 Complainant's first-level supervisor, the Operations Supervisor, and second-level supervisor, the District Manager, were aware of Complainant's EEO activity. The Agency found that Complainant had established a prima facie case of reprisal discrimination as he had suffered allegedly adverse actions, and these actions had occurred in close proximity to the initiating and filing of his previous complaint. The Agency further found that he had not shown that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. It concluded that Complainant had not established a case of harassment based on reprisal because he had not shown that the actions of the Agency took place due to his protected activity, and had not shown that the conduct in question was severe or pervasive.
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In his statement on appeal, Complainant argued that the Agency had not supplied documents to the EEO Investigator which could have supported his claims, including copies of the pop-up messages, documentation on work meetings, performance meetings, and scheduling and break times. The Agency did not file a statement or brief in opposition to Complainant's appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
Disparate treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804, n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, the complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
A complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp., supra). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
We find that Complainant established a prima facie case of reprisal discrimination in that he had engaged in protected EEO activity when he initiated EEO contact in his previous complaint in August 2007; Complainant's managers were both aware of his EEO activity as of August 13, 2007; and thereafter he was subjected to allegedly adverse actions. The events transpired within close temporal proximity to one another.
We further find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Testimony from the District Manager was that she did not send pop-up messages unless she felt that efficient, prompt service was not being provided to the Agency's claimants. The Operations Supervisor stated that Complainant received more pop-up messages than other employees because he was the primary contact and interviewer with the public, and so there were more instances where it might be necessary to send a pop-up message. The Operations Supervisor also testified that she routinely held informal meetings with employees about performance and work issues but that these meetings were not reduced to writing. The District Manager also testified that Complainant was given overtime in order to address a workload assigned to another employee, and that he was given a cash award for his "significant contribution" for his assisting in that workload in August 2007. She also testified that when management was alerted to the need for back-up on the front desk, management would respond and provide the appropriate back-up to allow office personnel to take their lunch and break periods.
We find that Complainant has not shown that the Agency's reasons for its actions were pretext for discrimination. Other than Complainant's assertions, he does not offer any evidence which would be probative of discriminatory motives on the part of the Operations Supervisor or the District Manager. Although Complainant argued on appeal that the Agency failed to provide evidence which would have supported his claim, in the form of the pop-up messages, we do not find that even if those messages had been provided, they would have necessarily established Complainant's case. Complainant could have provided testimony from other office co-workers regarding the frequency at which they received pop-up messages, and he did not. The Agency's explanation for why Complainant received more messages than other employees did is credible. Similarly, we find that informal discussions on work issues are not likely to have been memorialized, and do not find the Agency's reasons for its failure to provide notes on these informal discussions to be unworthy of credence.
Harassment
To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the complainant's statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897. 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
We find that Complainant has not established a claim of harassment based on any of his claimed bases. He has not established that the Agency took any of the above actions in reprisal for his protected EEO activity. We similarly find that the Agency's actions were not severe or pervasive enough to alter the conditions of Complainant's work environment; therefore Complainant's claim of harassment must fail.
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 determination that Complainant was not discriminated against as alleged.
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 (Nov. 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
July 18, 2012
Date
1 Complainant noted that he received the Agency's final decision on June 19, 2009. The Agency did not show that he received it at any earlier point in time.
2 In Singleton v. Social Security Administration, EEOC Appeal No. 0120100509 (May 25, 2012), the Commission affirmed the Agency's final decision finding that Complainant had not been discriminated against when he was not selected for a position.
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0120093071
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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