01A13185
07-31-2002
Martin Green, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Martin Green v. Social Security Administration
01A13185
July 31, 2002
.
Martin Green,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A13185
Agency No. 98-0455-SSA
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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 AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a GS-105-13, Manager at the agency's Module (formerly Module 13),
Southeastern Program Service Center (SESPC) facility in Birmingham,
Alabama. The record reflects that during the first Module meeting he
held, complainant instructed the employees of Module 13 to do government
business while on government time and, thus, the employees should find
work to do during periods of minimal call volume, rather than reading
magazines or personal tasks.
The record evidence establishes that complainant's relationship with
the union fell precipitously. Beginning in June 1997, complainant sent
management detailed memoranda documenting what he perceived as abuse of
official time by union officials employed in Module 13. In response, the
union began calling for complainant's removal from his managerial duties.
The union also informed management that any future problems with the
management of Module 13 would be dealt with very aggressively and the
union would litigate any and every problem.
In March 1998, the record shows that complainant stated that one of his
subordinates needed to submit documentation regarding participation in a
program administered by the Red Cross. During a subsequent meeting with
the employee, complainant responded to a statement by the employee that
he would have complainant removed by saying �[y]ou should live so long
. . .� This incident culminated into an official inquiry and ultimately
with an arrest warrant being issued for complainant's arrest.
Complainant sought EEO counseling and subsequently filed a formal
complaint on May 7, 1998, alleging that he was discriminated against on
the bases of race (White) and religion (Jewish) when:
(1) In a memorandum to the Assistant Regional Commissioner for Processing
Center Operations (ARC/PCO), dated January 13, 1997, the union began a
series of harassment (non-sexual) toward complainant, by letter dated
January 21, 1997, the ARC/PCO failed to �counter the attacks.�
On April 7, 1997, the union asked to meet with complainant to discuss
racial problems in Module 13. Despite complainant's willingness to
discuss and resolve the alleged incidents of racial discrimination
the union has not done so. Complainant feels this action was taken to
destroy any possibility of resolution and maintain a hostile working
environment.
On April 21, 1997, complainant received a request from an employee to
represent her at a meeting with management in regard to a dispute the
co-worker had the union. When he attended the May 1, 1997, meeting in
support of the employee, the Union Vice-President canceled the meeting.
Complainant contends this action was taken to destroy any possibility of
resolution and maintain a hostile working environment. Management was
informed of this action, but failed to properly respond.
As a result of leave issues concerning two union officials arising
from the 1997 Fun Walk, and the mounting hostilities surrounding the
preceding issues, on June 20, 1997, complainant requested, but was
denied by the ARC/PCO, to have two officials reassigned from Module 13,
by letter dated June 24, 1997.
In a letter dated June 27, 1997, one of the union officials involved in
the 1997 Fun Walk demanded that complainant answer 31 interrogatories
regarding his personal participation in the event. Upon learning that
this matter had been raised to the Deputy Regional Commissioner (DRC),
complainant requested feedback from upper management regarding how
to proceed. He received no support.
In a memorandum dated July 7, 1997, complainant learned that two
union officials had been named to the Level I Awards Panel by the union
president, in spite of their known animosity toward the management team
and Module 13 as a whole, and despite his recommendation against it.
Complainant received no response to a subsequent July 16, 1997 memorandum
he prepared to the ARC/PCO regarding the matter.
In a memorandum dated July 22, 1997, to the ARC/PCO, a Module 13 employee
voiced the same concerns over the union officials' Level I Awards Panel
participation. In a letter dated July 23, 1997, the employee received
a response from ARC/PCO wherein it was stated that the office had no
authority regarding the matter.
On September 2, 1997, complainant learned that he had been misquoted by
one of the union officials in her EEO complaint when she stated that
he made threatening remarks to her during the Level I awards panel.
Complainant informed the ARC/PCO of this matter on September 5, 1997,
but received no response.
On September 10, 1997, one of the two union officials whom complainant
had requested be reassigned from Module 13 on June 24, 1997, requested
and was immediately approved for reassignment.
In a letter dated October 24, 1997, from the union president to
the ARC/PCO, the union informed management that they intended to
aggressively litigate any and all problems coming out of Module 13.
Complainant believes that this was a direct attack against him.
He received no feedback from the ARC/PCO regarding the memorandum.
For several months, complainant unsuccessfully attempted to discuss
his situation with the DRC, but his calls were unanswered.
In a letter dated November 10, 1997, complainant informed ARC/PCO of a
class action complaint filed against him regarding performance awards
for the same period from January 1 to September 30, 1996. As redress,
the class action participants requested that complainant be stripped of
his supervisory duties. However, complainant notes that he was not the
Manager in Module 13 during the period in question. In a letter dated,
November 12, 1997, complainant received a less than adequate response
from the ARC/PCO.
In January or February 1998, during one of the then DRC's last visits,
the union again proposed that complainant be relieved of his supervisory
duties. Complainant received no feedback from the ARC/PCO regarding
this proposal.
After meeting with an employee on March 10, 1998, regarding the use of
administrative leave to donate blood, complainant was again accused of
making threatening remarks. During discussions regarding the incident
with the ARC/CPO and the employee, the employee stated that complainant
had indirectly made threatening remarks to another Module 13 employee
when she overheard one of complainant's personal telephone conversations
regarding his guns. Complainant received no support from the ARC/PCO
regarding this matter.
During a March 16, 1998, meeting regarding the March 10, 1998, incident,
complainant's attorney asked who had requested the meeting and who had
jurisdiction over resolving the matter. The ARC/PCO did not accept
responsibility for the meeting; therefore, the union was responsible
for calling it. The employee who initiated the threatening remarks
against complainant read a prepared statement regarding �the number of
Black people being hanged.� Management failed to properly respond.
In a letter from the union president to ARC/PCO dated on or about March
16, 1997, the union requested a formal investigation of the March 10,
1997, incident. Complainant contends that this was another union
attempt to undermine him.
In a memorandum dated March 18, 1998, complainant requested that the
ARC/PCO formalize in writing the details of the March 10, 1997, incident,
so as not to cause any negative inference of guilt. The ARC/PCO denied
complainant's request.
Complainant received a warrant for his arrest on March 27, 1998, for his
failure to appear in court the previous day to face charges regarding
the March 10, 1996, threat. Complainant informed management of this
situation and while the Deputy ARC/PCO did contact the Office of General
Counsel in Atlanta, management did nothing to resolve the matter.
In a letter from the union president to the regional commissioner, dated
March 30, 1998, the union again made �false, slanderous statements and
accusations� about him in still another attempt to undermine him.
In a letter from the union vice-president to the ARC/PCO, dated April 23,
1998, the union again made false, slanderous statements and accusations
about complainant to undermine him.
In a February 1999, meeting with management, the union president
referred to complainant as a �trained killer.� Complainant was not at
this meeting, and his attendance was denied by the ARC/PCO because of
the animosity between the union and the complainant.
Initially, the complaint was dismissed for failure to state a claim
on June 3, 1998. Complainant appealed and the Commission we reversed
the dismissal and remanded the complaint for further processing.
See EEOC Appeal No. 01985000 (June 25, 1998). At the conclusion of the
investigation, complainant was 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 FAD, the agency concluded that complainant failed to establish
a prima facie case of race and religion discrimination. Specifically,
the agency found that complainant did not allege or prove that he was
subjected to an adverse employment action. In addition, the FAD found
that complainant failed to present any evidence that similarly situated
individuals, outside of complainant's protected classes, were similarly
situated were treated more favorably.
In its FAD, the agency also concluded that complainant failed to establish
a prima facie case of harassment. Specifically, the agency found that
complainant's claim involved actions by the bargaining unit and its
officials, and liability was not imputed to the agency. The agency found
that complainant did not show that any of the conduct was based on his
race and/or religion. On appeal, complainant restates his contention
that the agency should have filed a charge of an unfair labor practice
against the union. The agency requests that we affirm its FAD.
In any proceeding, either judicial or administrative, involving a charge
of discrimination, it is the burden of the complainant to initially
establish that there is some substance to his or her allegations of
discrimination. In order to accomplish this burden, the complainant
must establish a prima facie case of discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Furnco Construction Co. v. Waters,
438 U.S. 567 (1978). This means that the complainant must present
evidence such that, were it not rebutted, the trier of fact could conclude
that unlawful discrimination did occur. Applying these standards, the
Commission finds that complainant failed proffer evidence upon which
a reasonable trier of fact could conclude that the agency's failure
to intercede and provide support was based on his race and/or religion.
In reaching this conclusion, we note that complainant provided no evidence
of similar situated managers, outside of his protected classes, that were
treated more favorably nor has complainant otherwise proffered evidence
that his race and/or religion played any role in the actions.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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 (S0900)
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 (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
July 31, 2002
__________________
Date