0120081197
10-13-2009
Stephon C. Lightener, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Stephon C. Lightener,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120081197
Hearing No. 460-2007-00096X
Agency No. DAL-06-2342-SSA
DECISION
On January 8, 2008, complainant filed an appeal from the agency's December
13, 2007 final order 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Social Insurance Specialist, Claims Representative Trainee at the
agency's Houston Northwest Texas Field Office facility in Houston, Texas.
Complainant was hired under the agency's Federal Career Intern Program
(FCIP) and was employed with the agency from June 28, 2004 through June
28, 2006. Complainant signed a statement on his start date indicating
that he understood that this was an excepted service position not
to exceed two years and that he could be terminated at any time.
Complainant also indicated by signing the statement that he understood
that this position could be converted to a career-conditional or career
permanent appointment upon successful completion of the internship.
On June 5, 2006, complainant was informed that his internship would not
be converted into a career permanent or career-conditional appointment
and his FCIP internship would expire on June 26, 2006.
On September 13, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (African-American), sex
(male), color (medium brown), parental status (married with children),
and disability (gout in both feet) when his employment was terminated
during his FCIP appointment, effective June 26, 2006.
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). Complainant timely
requested a hearing. Over the complainant's objections, the AJ assigned
to the case granted the agency's July 10, 2007 motion for a decision
without a hearing. The AJ issued a decision without a hearing on August
16, 2007 finding that complainant failed to prove that he was subjected
to discrimination as alleged.
In her decision, the AJ initially noted that complainant was advised by
his EEO Counselor and later by the AJ during a pre-hearing conference
call that parental status was not covered by the statutes prohibiting
employment discrimination. The AJ found that the Commission does not have
jurisdiction over that basis and declined to address that issue. Next,
the AJ found that complainant failed to establish a prima facie case of
discrimination on the basis of disability. Complainant claims to have
gout in both feet which causes him pain and difficulty walking. The AJ
found that there was no evidence that complainant was unable to walk
without an aid. The AJ found that complainant's job was administrative
in nature and did not require walking. Further, the AJ found that there
was no evidence complainant ever requested an accommodation or that he
needed one. The AJ found that complainant failed to offer sufficient
evidence establishing a prima facie case of disability discrimination.
Furthermore, the AJ found that complainant failed to offer any facts
which would demonstrate that he was subject to an adverse employment
action giving rise to an inference of disability discrimination.
As to complainant's race, color, and sex discrimination claims, the AJ
found that complainant had also failed to establish a prima facie case
of discrimination. The AJ found that complainant failed to show that a
similarly situated co-worker outside his protected group was converted to
a career or career-conditional appointment. Notwithstanding complainant's
failure to establish a prima facie case of discrimination, the AJ found
that the agency had articulated legitimate, nondiscriminatory reasons
for its actions. The AJ found that complainant's supervisor (S1)
claimed that complainant was unable to satisfactorily perform his job.
The AJ found that S1's claim was supported by the record in the form
of performance reviews and management testimony. The AJ found that
complainant acknowledged that he had performance problems and that he
had difficulty with certain types of claims. Finally, the AJ found
that complainant had offered no evidence that the statistics produced
by the agency documenting his poor performance failed to accurately
reflect his work. The AJ found that complainant failed to show that the
agency's reasons were pretextual and as a result, failed to establish
that he had been discriminated against on the alleged bases.
The agency subsequently issued a final order adopting the AJ's decision
without a hearing. The agency found that complainant failed to prove
that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant initially claims that he has presented enough
evidence to establish a prima facie case of discrimination on the alleged
bases. Complainant states that he is a member of a protected class and
experienced an adverse action based on S1's hostility towards minorities.
Complainant claims that a co-worker outside his protected group was
converted to career or career-conditional despite falling asleep in class
and having attendance issues. Additionally, complainant claims that S1
made no effort to ensure that he was properly trained, failed to make
out a detailed special plan of improvement for complainant, and made no
extra effort to see if any modification of his training regime was needed.
Additionally, complainant, for the first time, puts forth allegations of
disparate impact and being subjected to a hostile work environment based
on his sex and race.1 Further, complainant claims that his termination
was handled improperly as he was not allowed to review his personnel
file, was not notified that he could have union representation present
at the termination interview, and was deprived of saying goodbye to
his co-workers. Furthermore, complainant claims that his complaint was
improperly handled by both the agency and the AJ. Finally, complainant
claims that the agency has a history of discriminatory behavior against
black males. In support, complainant points to a settlement reached
in a 2002 race discrimination class action suit involving the agency's
headquarters in Baltimore, Maryland. Complainant asks that the case be
remanded back to the AJ for a hearing.
In response, the agency claims that complainant has failed to establish
a prima facie case of discrimination on the alleged bases. The agency
claims that even had complainant established a prima facie case of
discrimination on the alleged bases, it has articulated legitimate,
nondiscriminatory reasons if its actions, specifically, complainant was
unable to satisfactorily perform his job. In support, the agency cites
complainant's performance reviews and statements from complainant's
supervisors. The agency claims that no probative evidence exists
showing that complainant was discriminated against on the alleged bases.
Finally, the agency claims that the agency and the AJ properly handled
complainant's discrimination complaint. Accordingly, the agency asks
that we affirm the final order.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
Disparate Treatment
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).
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).
In the instant case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, S1 claims
that that complainant was unable to satisfactorily perform his job.
Report of Investigation (ROI), Ex. 9, S1's Aff. at 1-2. S1 claims that
complainant was notified of his performance throughout his employment.
Id. at 2. S1 claims that she discussed complainant's performance
and progress with him three times in 2005 and he was reviewed once in
2006 by his mentor while S1 was on maternity leave. The record reveals
that in each review, complainant was issued a memorandum explaining the
number of errors committed for each type of claim and instructions for
improvement. Id. at 2-3. Further, S1 claims that on several occasions
she had additional discussions with complainant regarding errors he had
committed or other performance issues. Id. While S1 was out on maternity
leave, complainant's acting supervisor (S2) claims that complainant
"struggled and did not appear to have a strong grasp of the technical
aspects of the cases." ROI, Ex. 12, S2's Aff. at 2. Additionally, S2
claims that complainant did not improve during that period despite having
access to any experienced claims representative or management official
for assistance. Id. S1 claims that she consulted with two other members
of management and it was decided that complainant's position would not
be renewed because he was unable to perform the duties of the position.
ROI, Ex. 9, S1's Aff. at 4.
As to the co-worker outside complainant's protected group who was
converted to career or career-conditional, S1 claims that she was
counseled each time for her actions and those issues were not terminable
offenses. ROI, Ex. 9, S1's Aff. at 2. Further, S1 claims complainant was
not treated differently because complainant was "simply unable to do his
job and was terminated based on his unsatisfactory performance of work."
Id.
Regarding his parental status claim, complainant claims that his
third-line supervisor (S3) was not happy when he called in to report that
he would be arriving late or would be out because he had to care for
his daughter. Complainant claims that S3 made comments such as "can't
your wife do it; we really need you to come in." Complainant claims that
S3 then became cold and began treating him differently. We note that
although Title VII does not prohibit discrimination based on marital or
parental status, it does prohibit employers from treating men and women
differently with regard to such status.2 See EEOC Enforcement Guidance:
Unlawful Disparate Treatment of Workers with Caregiving Responsibilities,
at 10-11 (May 23, 2007). S3 denies making comments about complainant's
absences or that she was unhappy about the nature of complainant's
absences. Further, S3 claims that as manager she inquires about the
reasons for absences for all employees.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
Complainant claims that his performance was no less satisfactory than any
other trainee and that he made common mistakes that all trainees made.
Complainant claims that S1 had personal animosity towards him fueled by
his race, sex, and disability. Further, complainant claims that he had
many different mentors which added to his difficulty. He claims that as
a trainee he feels management had an obligation to assist him in learning
his job and that during his performance reviews, he was given confusing
and erroneous information. He claims that he was always told that his
work was about where a trainee's should be and he was never placed on
an improvement plan. Finally, complainant claims that he was not given
adequate warning or opportunity to improve his performance and that he
feels he never had a fair chance of succeeding under S1.
In spite of complainant's claims that he performed his job satisfactorily,
the record reveals that management documented and informed him of his
performance deficiencies. Complainant acknowledges he made mistakes,
however he believes he received inadequate training. Complainant failed
however to show that he received less training or fewer opportunities
to improve than any co-worker who was elevated to a career or
career-conditional position.
Construing the evidence in the light most favorable to complainant,
complainant has failed to show by a preponderance of the evidence
that the agency's reasons were pretext for prohibited discrimination.
We note that even assuming S3 made the alleged comments regarding
complainant's leave requests, complainant produced no evidence that
S3 ever denied complainant's leave requests to care for his daughter.
Further, complainant has failed to show any connection between the
comments and management's decision to not appoint him to a career or
career-conditional position. We find that aside from complainant's bare
assertions, the record is devoid of any persuasive evidence that could
establish pretext or discriminatory animus on the part of the agency.
We further note that the agency has broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed
by the reviewing authority absent evidence of unlawful motivation.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259;
Vanek v. Department of the Treasury, EEOC Request No. 05940906 (January
16, 1997). At all times, the ultimate burden of persuasion remains with
complainant to demonstrate by a preponderance of the evidence that the
agency's reasons were not the real reasons, and that the agency acted
on the basis of discriminatory animus. Complainant failed to carry
this burden.
The Commission finds that the AJ's decision without a hearing was
appropriate, as no genuine issue of material fact is in dispute.3 See
Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003).
We AFFIRM the agency's final order finding no discrimination.
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
10-13-2009__
Date
1 As complainant failed to raise these issues at any time during the
processing of his EEO complaint prior to this appeal, we find that
they are not properly before us and decline to address these issues on
appeal.
2 Executive Order 13152 (issued May 2, 2000) and the agency's EEO policy
provide additional protection from discrimination based on parental
status. Pursuant to those policies, the agency issued a separate decision
regarding complainant's parental status discrimination claim with no
further avenues for appeal. We have no jurisdiction over the basis of
"parental status."
3 Contrary to complainant's assertions on appeal, the Commission finds no
evidence in the record to suggest that the AJ's handling of complainant's
case was improper. We find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120081197
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120081197