Tuan P.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionFeb 22, 20190120173014 (E.E.O.C. Feb. 22, 2019) Copy Citation 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. 0120173014 2 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. 0120173014 3 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 0120173014 4 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 0120173014 5 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 0120173014 6 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 0120173014 7 (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 Copy with citationCopy as parenthetical citation