01a45173
01-31-2005
Adebola C. Adekoya, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Adebola C. Adekoya v. Social Security Administration
01A45173
January 31, 2005
.
Adebola C. Adekoya,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A45173
Agency No. 02-0312-SSA
Hearing No. 380-2003-08146
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 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
order.
The record reveals that complainant, a Case Technician (GS-5, SSA-OHA)
at the agency's Office of Hearings and Appeals in Portland, Oregon,
filed a formal EEO complaint on May 22, 2002, alleging that the agency
discriminated against him on the bases of race (African-American),
national origin (Nigerian), sex (male), color (Black), and age
(D.O.B. 1/16/56) when (1) he was terminated from employment during his
probation on April 29, 2002, and (2) he was subjected to hostile work
environment harassment from May 2001 until his termination when, inter
alia, he was (a) held to a higher standard than his peers and given more
than his fair share of work; (b) given inadequate training, (c) constantly
hounded by his supervisor and two of his co-workers who reported his daily
work activities to the supervisor, (d) denied a half-hour credit on August
24, 2001, and (e) pressured by his supervisor to falsify time records.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following the hearing, the AJ issued a decision finding no
discrimination. The AJ concluded that complainant failed to prove a case
of disparate treatment and of discriminatory harassment. The agency's
final order, dated June 22, 2004, implemented the AJ's decision.
On appeal, complainant contends that the AJ (1) erred in finding that
the agency did not discriminate against him, (2) wrongfully denied him
the opportunity to cross-examine two witnesses, (3), improperly admitted
into evidence and based his decision on �illegally obtained [documents
regarding his] prior employment.� and (4) applied an incorrect legal
standard in examining the disparate treatment claim.<1>
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Harassment
It is well settled that harassment based on an individual's race,
national origin, sex, color or age is actionable. See, e.g., Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of harassment under those bases, the complainant must show that:
(1) he belongs to the statutorily protected classes; (2) he was subjected
to unwelcome conduct related to his membership in those classes; (3)
the harassment complained of was based on race, national origin, sex,
color or age; (4) the harassment had the purpose or effect of unreasonably
interfering with his work performance and/or creating an intimidating,
hostile, or offensive work environment, and (5) there is a basis for
imputing liability to the employer. See Fox v. Gen. Motors, 247 F.3d 169
(4th Cir. 2001); McLeod v. Social Sec. Admin., EEOC Appeal No. 01963810
(Aug. 5, 1999). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice
No. 915.002 (Mar. 8, 1994).
The evidence in the record is insufficient to support a finding that
management's actions towards complainant were based on his race, national
origin, sex, color, or age. Although complainant belongs to these
statutorily protected classes, he did not show that he was subjected to
unwelcome conduct related to his membership in these classes. As the
AJ pointed out, complainant did not prove that the alleged harassment
was directly linked to his race, national origin, sex, color or age.<2>
Therefore, because the complainant failed to establish that the alleged
harassment was based on a protected basis, the Commission finds that
the AJ's decision in this regard was proper.
Disparate Treatment
With regard to complainant's unlawful termination claim, the Commission
again finds no basis to disturb the AJ's conclusion. Complainant failed
to establish that the agency's legitimate non-discriminatory reason for
terminating complainant was a pretext, and specifically with regard to
his age discrimination claim, complainant failed to show that age was
a motivating factor in his dismissal.
As correctly explained by the AJ, the allocation of burdens and order of
presentation of proof in a Title VII case alleging disparate treatment
discrimination is a three-step procedure. The AJ did not explain
adequately the proper analysis under the ADEA. Under this statute,
it is "unlawful for an employer ... to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age." 29 U.S.C. � 623(a)(1).
When a complainant alleges that he or she has been disparately treated
by the employing agency as a result of unlawful age discrimination,
"liability depends on whether the protected trait (under the ADEA,
age) actually motivated the employer's decision." Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper
Co. v. Biggins, 507 U.S. 604, 610 (1993)). "That is, [complainant's]
age must have actually played a role in the employer's decision-making
process and had a determinative influence on the outcome." Id.
In cases such as this one, where there is an absence of direct evidence
of discrimination, the analysis is the same under Title VII and the ADEA.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); see
also Reeves, 530 U.S. at 142 (applying the McDonnell Douglas analysis
to an ADEA claim). Complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie claim of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant
must then prove, by a preponderance of the evidence, that the legitimate
reason offered by the employer was not its true reason, but was a pretext
for discrimination. See McDonnell Douglas, 411 U.S. 792 (1973).
Here, although complainant successfully established a prima facie case
of race, color, sex, age, and national origin discrimination, he was
unable to rebut the agency's legitimate non-discriminatory reason for
dismissing him from federal employment. The agency maintained that it
dismissed complainant because he was rude and disruptive and he failed to
follow instructions. In support of its action, the agency presented the
testimony of several supervisors and co-workers all attesting to the fact
that complainant had behavioral difficulties with superiors, and refused
to seek assistance on work assignments, even when repeatedly urged to
do so in order to prevent mistakes in his final work product. To this,
however, complainant was unable to present sufficient evidence to prove
that the agency's articulated reasons for his dismissal were pretextual,
or that his age actually played a role in the agency's decision-making
process and had a determinative influence on the outcome. See Reeves,
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. We conclude that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus toward
complainant's race, national origin, color, sex or age. We discern no
basis to disturb the AJ's decision. 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 agency's final order.
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
January 31, 2005
__________________
Date
1 With regard to point (2), the
Commission notes that complainant did not object to the AJ's decision to
limit presentation of evidence, and therefore he failed to preserve any
rights in presenting such evidence. Furthermore, the Commission informs
complainant that the AJ has �full responsibility for the adjudication
of the complaint, which includes ...limit[ing] the number of witnesses
so as to exclude irrelevant and repetitious evidence.� EEOC Management
Directive 110 (EEO MD-110), at 7-8 (November 9, 1999). Therefore, the
Commission will not second-guess AJ's decision to conclude the hearing
after two full days of testimony.
As for point (3) that the AJ wrongfully admitted �illegally obtained�
documents regarding complainant's dismissal from a Washington state
correction facility, complainant is reminded that such State documents
are public documents, and thus readily available to an AJ. Moreover,
the AJ admitted the document for impeachment purposes. As such, the
Commission finds no error.
2 Complainant does mention that one of his supervisors made a derogatory
comment relating to his accent. However, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See McDaniel
v. EEOC, EEOC Appeal No. 01A04246 (Oct. 20, 2000); Banks v. Health &
Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995). Moreover, the
Commission has consistently found that remarks or comments unaccompanied
by a concrete agency action usually are not a direct and personal
deprivation sufficient to render an individual aggrieved under Title VII.
See Backo v. United States Postal Serv., EEOC Request No. 05960227
(June 10, 1996).