Tuan P.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Feb 22, 2019

0120173014 (E.E.O.C. Feb. 22, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tuan P.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120173014

Hearing No. 410-2016-00272X

Agency No. ATL-15-0193-SSA

DECISION

On September 12, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 22, 2017, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Hearing Officer
Director at the Agency’s Office of Disability Adjudication and Review, Atlanta North Hearing
Office facility in Atlanta, Georgia.

On February 17, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. On October 28, 2014, Complainant was removed from his position and
temporarily reassigned to a different office pending investigation based on

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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allegations that several supervisors lied during a previous EEO investigation of a
complaint filed by a subordinate employee.

2. Complainant was subjected to harassment based on his work conditions,
reassignment, an administrative investigation, and the assignment of duties.

During the relevant time period, Complainant was the second-line supervisor of an Attorney
Advisor. The Attorney Advisor’s first-line supervisor was the Group Supervisor (“Group
Supervisor 1”) (Caucasian male).

The Attorney Advisor submitted an allegation that management was assigning him work (bench
decisions) in violation of Agency policy, as well as in a discriminatory manner. The Agency’s
Office of Executive Operations conducted an administrative investigation of the complaint, while
its EEO office conducted an EEO investigation. Both investigations began in April 2014.

Shortly thereafter, the Attorney Advisor was placed on a Performance Assistance Plan (PAP) by
Group Supervisor 1. Complainant supported issuing the Attorney Advisor the PAP.

Subsequently, the investigations resulted in a finding that management was, in fact, violating
Agency policy in the bench decision assignments. However, the investigations did not show that
the Attorney Advisor was subjected to retaliation for lodging his complaint.

Later, the Attorney Advisor contacted the Deputy Commissioner and the Deputy
Commissioner’s Senior Advisor (“Senior Advisor”) indicating that he had recordings of
conversations that showed that Complainant and other management officials had lied during the
EEO investigation. There were several meetings that occurred among the Attorney Advisor,
Complainant, the Senior Advisor, the Regional Management Officer, the Chief Administrative
Law Judge, and other members of management regarding the Attorney Advisor’s allegations. It
was decided that further investigation was needed. The Senior Advisor and other senior
managers determined that the Attorney Advisor’s direct line of supervisors should be reassigned
from the office to protect the integrity of the investigation. As such, it was decided that
Complainant and Group Supervisor 1 would be removed from the Atlanta North Office and
temporarily reassigned to the Regional Office during the pendency of the investigation.

On October 28, 2014, the Regional Management Officer (female) was instructed to travel to the
Atlanta North Office and notify Complainant and Group Supervisor 1 of their reassignment.2
The Regional Management Official read from a script providing the management officials with
instructions on how to proceed. She had them gather their belongings and they were
immediately transferred to the Regional Office.

2 An Administrative Judge (African American male) was also reassigned at this time for the
same reasons.
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Complainant reported to the Regional Office on October 29, 2014. At first, the Regional
Management Official had Complainant assigned to a different work location from his colleagues.
Later, he was assigned to work on a floor with his colleagues. He kept his title during the
investigation but worked on projects and evaluations. Complainant said he had little interest in
the work he was assigned. Complainant asserted further that he was no longer considered part of
management. He was removed from management distribution lists for his home office and was
instructed not to participate in various interviews and selections for a number of positions in the
Atlanta North Office. Complainant indicated that it was a traumatic experience and he felt
completely blindsided. He claimed that his reputation has been damaged. He believed that he
was subjected to harassment.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 19,
2016 motion for a decision without a hearing and issued a decision by summary judgment in
favor of the Agency on July 17, 2017.

The AJ determined that the Agency provided legitimate, nondiscriminatory basis for its actions
regarding claim (1). The Agency indicated that all of the supervisors in the Attorney Advisor’s
chain of command were removed during the Agency’s administrative investigation into his
claims. It was determined that this interim measure best served the investigation. The AJ held
that Complainant failed to offer any evidence to establish that the Agency’s reason was pretext
for discrimination based on his race and/or sex. The AJ then address Complainant’s claim of
unlawful retaliation. Again, the AJ held that the Agency provided legitimate, nondiscriminatory
reasons for its action and Complainant failed to provide any evidence that the Agency’s reasons
were pretext for unlawful retaliation.

As to claim (2), the AJ found that Complainant failed to show that he was subjected to a hostile
work environment based on his race, sex, and/or prior protected activity. The AJ noted that
events alleged by Complainant involved the reassignment, his resulting treatment, and the
humiliation he experienced due to the rumors and perceptions when he was reassigned pending
the internal investigation. The AJ held that Complainant failed to explain how the alleged event
occurred because of his protected bases. As such, the AJ concluded that Complainant had not
shown that he was subjected to discriminatory harassment as alleged in claim (2).

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination/retaliation as alleged. This appeal
followed.

ANALYSIS AND FINDINGS

We must 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
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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 order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. Here,
Complainant has failed to point with any specificity to particular evidence in the investigative
file or other evidence of record that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Disparate Treatment – Claim (1)

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (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
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evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

Upon review of the record, we find that the AJ properly determined that the Agency’s witnesses
provided legitimate, nondiscriminatory reasons for temporarily reassigning Complainant to the
Regional Office to protect the integrity of the pending the administrative investigation into the
allegations made by the Attorney Advisor.

Complainant must now prove, by a preponderance of the evidence, that the Agency’s proffered
reasons for the reassignment were pretext for discrimination based on his race and/or sex or in
retaliation for prior protected activity. We find that Complainant failed to provide any evidence
in support of his claim of discrimination and/or retaliation. Complainant’s main argument
appears to be that Group Supervisor 2, a white female, had also been identified by the Attorney
Advisor in his complaint, but was allowed to remain in the North Atlanta office. However, as
the AJ determined, Agency management decided that only those individuals in the Attorney
Advisor’s direct line of supervision were to be reassigned. Group Supervisor 2 was not in the
Attorney Advisor’s line of supervision at the time period in question and, therefore, is not an
appropriate comparator to Complainant. We note, however, that Group Supervisor 1, who was
the Attorney Advisor’s first line supervisor, was similarly reassigned with Complainant. He is of
a different race than Complainant, undermining Complainant’s race discrimination claim. The
record also contains evidence that in at least one other instance, a female manager was similarly
temporarily reassigned during the pendency of an investigation. In sum, beyond his bare
assertions, Complainant has failed to produce evidence in support of his claim of
discrimination/retaliation with regard to his reassignment.

Harassment – Claim (2)

It is well-settled that harassment based on an individual’s race, sex, and/or prior protected EEO
activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). To
establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs
to a statutorily protected class; (2) he 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 his 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 Agency. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

In other words, to prove his harassment claim, Complainant must establish that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
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position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of a protected basis – in this case, his race, sex and/or
retaliatory animus. Only if Complainant establishes both of those elements – hostility and
motive – will the question of Agency liability present itself.

Complainant alleged in claim (2) that he was subjected to humiliation and demoralization when
he was temporarily assigned to the Regional Office. He indicated that he had his managerial
duties removed, that he was isolated from others, and that he was traumatized by the experience
of being temporarily reassigned pending the administrative investigation. However, we find that
Complainant failed to provide any evidence to support his assertion that he was subjected to
these actions based on his race, sex, and/or prior EEO activity. Therefore, we conclude that the
AJ properly held that Complainant had not demonstrated that he was subjected to a
discriminatory hostile work environment as alleged.

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 final order adopting the AJ’s decision
finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
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(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 22, 2019
Date