Philip Z. Sobocinski, Jr, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionApr 8, 2009
0120072373 (E.E.O.C. Apr. 8, 2009)

0120072373

04-08-2009

Philip Z. Sobocinski, Jr, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Philip Z. Sobocinski, Jr,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120072373

Agency No. DAL 05 0262-SSA

DECISION

Complainant filed an appeal from the agency's March 1, 2007 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. For the

following reasons, the Commission AFFIRMS the agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as an Attorney Advisor at the agency's Office of Hearings and Appeals

facility in San Antonio, Texas.

On May 3, 2005, complainant filed an EEO complaint alleging that he

was discriminated against on the bases of national origin (part Polish

ancestry), sex (male), and in reprisal for prior protected EEO activity

under Title VII of the Civil Rights Act of 1964 when:

1. On December 30, 2004, complainant received an oral admonishment

by the Acting Hearing Office Director (HOD);

2. On February 15, 2005, complainant received an official letter

of reprimand from his Group Supervisor (GS);

3. Complainant was suspended from his position of Attorney-Advisor,

GS-905-12, for two calendar days effective July 19, 2005; and

4. Complainant was subjected to a hostile work environment with

regard to the assignment of duties through being given more extremely

complex cases:

a) On November 23, 2004, complainant's Group Supervisor

(GS) dismissed as inadequate complainant's reasons (voluminous

case evidence and complexity of issues) for his inability to

complete a specific case.

b) On December 8, 2004, the Hearing Office Director handed

complainant a formal letter directing complainant to complete

a specific case by the close of business the following day.

By letter dated July 15, 2005, the agency dismissed claim (4) pursuant

to 29 C.F.R. � 1614.107(a)(1) on the grounds that the incidents of

harassment described in this claim were not so severe or pervasive to

state a claim of harassment. The agency accepted the remaining claims

for investigation.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). In accordance with

complainant's request, the agency issued a final decision dated March 1,

2007, pursuant to 29 C.F.R. � 1614.110(b).

In its decision, the agency affirmed its earlier dismissal of claim (4),

on the ground noted herein, finding that complainant was not subjected

to harassment because the events described were neither severe nor

pervasive.

The agency further found that with respect to claim (1), that complainant

did not establish a prima facie case of discrimination based on either

sex or national origin. Specifically, the agency found that complainant

failed to identify any similarly situated employees who had engaged in

similar conduct but were treated differently by the HOD, the agency

official issuing the oral admonishment to complainant. The agency

found that the HOD described complainant's confrontational manner on

the identified occasion as rude, offensive and argumentative, and that

complainant raised his voice.

Regarding claim (2), the agency found that complainant did not establish a

prima facie case of discrimination based on his national origin or sex.

The agency observed that complainant claimed others were counseled

concerning their failure to meet multiple deadlines, but the agency

found that complainant did not present sufficient evidence that the

other employees were similarly situated in all relevant aspects, nor

any evidence showing that complainant's group supervisor was motivated

by complainant's national origin or sex when she issued the Letter

of Reprimand to him. The agency found that the sequence of events

surrounding the Letter of Reprimand and complainant's EEO activity

supported a prima facie case of reprisal discrimination, but that GS

had articulated a legitimate, nondiscriminatory reason for her actions

in that complainant's behavior was disrespectful and continued to fail

to meet deadlines, which she had documented.

With respect to claim (3), the agency again found that complainant

had not established a prima facie case of discrimination based on his

national origin or sex when complainant was suspended for two days.

The agency noted that complainant did not deny that prior to receiving

a management directive on March 11, 2005, he attempted to meet with GS

for the purpose of discussing his assignment deadlines and case progress

after GS had left for the day, prompting GS to provide complainant with

written instructions indicating that the "close of the business day"

meant 4:30 pm and not the end of complainant's work day. Accordingly,

the agency found that complainant had not shown that he was suspended

because of his national origin or sex, but because he failed to follow

GS's instructions. The decision concluded that complainant failed to

prove that he was subjected to discrimination as alleged. The agency

also concluded that complainant failed to show that his claim that he

was discriminatorily assigned the most difficult and complex cases to

be without merit.

On appeal, complainant points out that he has served as an Attorney

Advisor since 1997 and that he has consistently achieved successful annual

performance assessments from his supervisors, including the HOD and GS

identified in his complaint. Complainant states that at least three other

decision writing attorney advisors also completed assignments beyond the

deadlines assigned and they were never subjected to the harsh treatment

by GS and HOD that he was. Complainant states that witness statements

refute the statements of GS and HOD regarding the events at issue in the

complaint including witnesses who verify that complainant did not raise

his voice when speaking with GS. Complainant also notes that GS made

a point of speaking with other employees about their weekly assignments

and deadlines, while complainant was required to initiate notice to GS

when he would not be finishing his work by the assigned deadline.

ANALYSIS AND FINDINGS

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 EEOC Management

Directive 110, Chapter 9, � VI.A. (November 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").

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). 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, 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, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

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. v. Green, 411 U.S. 792, 802 (1973)). 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. Department of Veteran Affairs, EEOC Request No. 05960473

(November 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. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

With respect to claim (1), (2) and (3), we find the agency's decision

is supported by the record and we find that, assuming complainant

established a prima facie case of national origin, sex or reprisal

discrimination, that GS and HOD provided legitimate, non-discriminatory

reasons for their actions. We find that complainant has not shown by a

preponderance of the evidence that he was singled out for harsh treatment

and discipline because of his national origin or sex. We observe that

the confrontations and instruments of discipline closely followed or

coincided with complainant's EEO activity, but as the agency noted,

complainant was instructed to contact GS when he was unable to meet

established deadlines and complainant does not deny that he was unable

on various occasions, to meet those deadlines. We find nothing in the

record to indicate that the confrontations complainant experienced with

GS or HOD were in any way related to complainant's national origin or sex,

or in reprisal for complainant's EEO activity.

It appears that although the agency dismissed claim (4) for failure to

state a claim, the agency also, as complainant recognizes, addressed

the claim on the merits and found no discrimination. The Commission,

considering claim (4) together with the remainder of the complaint, finds

that complainant has not shown that any allegedly harassing incident,

including work assignments, was motivated by discrimination.

We AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

April 8, 2009

__________________

Date

2

0120072373

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120072373