0120101008
07-05-2012
Barry S. Sheinberg, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Barry S. Sheinberg,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120101008
Agency No. SF-09-0279-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 7, 2009 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Complainant alleged that the Agency subjected him to hostile work environment harassment on the bases of disability (physical) and age (56) when, beginning in January 2009, management: (1) closely monitored his decision-drafting progress; (2) assigned him cases that were more time consuming to complete while telling him he needed to increase his productivity; and (3) gave him greater restrictions regarding overtime work.1
Upon review of the record, we find that Complainant failed to establish a claim of harassment. Specifically, we find that Complainant did not prove, by a preponderance of the evidence, that the actions complained of were based on his disability or age.
Regarding incident 1, management averred that they monitored Complainant's work throughout the day in order to help him with any issues that arose during his decision writing. In addition, management averred that Complainant's draft decisions did not meet the office's quality standard and often were returned to him for corrections. Further, documentary evidence shows that Complainant's draft decisions did not meet the office's quality standard and required numerous corrections pertaining to clarity, organization, and analysis. Report of Investigation (ROI), Ex. 2, at 21, 25-28; Ex. 11, at 22-23, 33, 35-38. Although Complainant disagreed with many of the edits and believed that they were not "in good faith," the record evidence does not indicate that management's review of Complainant's draft decisions were influenced by his disability or age.
Regarding incident 2, management averred that they assigned Complainant cases of the same difficulty as his peers and that only Senior Attorneys - Complainant not being one of them - received more difficult cases. In addition, management averred that Complainant had a continuous backlog of cases because they needed to return his draft decisions numerous times for rework, which cut into the time that he could spend on new cases. Moreover, documentary evidence shows that Complainant's workload distribution was similar to that of other Attorney-Advisers and paralegals in the office. According to Complainant and management, affirmation ("unfavorable") decisions took more time to write than reversal ("favorable") decisions. While Complainant asserts that his productivity was lower because management assigned him a disproportionate amount of time consuming affirmation ("unfavorable") cases, the record does not support that assertion. For example, in FY 2009 (through March 2009), the record reflects that "partially favorable"/"unfavorable" decisions made up 61 percent of Complainant's workload and 59 percent of his co-workers' workloads. ROI, Ex. 16, at 3.
Regarding incident 3, management averred that they did not authorize overtime for Complainant because he was not caught up on his workload. In addition, management averred that it was office policy to authorize overtime only to work on new cases, and not to do work that was returned for corrections. Further, documentary evidence shows that it was office policy for management to authorize overtime only for new cases. For example, a March 13, 2009 management email to the office states, in pertinent part, that "[o]vertime will still only be used for additional production, and will be tightly controlled." ROI, Ex. 2, at 31. Although Complainant argues that such an overtime policy is invalid under the union contract, the record evidence does not show that management adopted or applied such an overtime policy in a discriminatory fashion with respect to his disability or age.
Regarding his overall harassment claim, Complainant argued that management wanted to get rid of disabled and older employees in the office. Specifically, Complainant asserted that many such employees retired or transferred to other offices because of the hostility they faced from management. In addition, Complainant asserted that management made negative remarks about such employees on two occasions. While Complainant wants us to consider the above as relevant background evidence, we find that it is insufficient to show that the incidents alleged in the instant complaint were discriminatory. In so finding, we note the lack of evidence that those employees retired or transferred because of disability- or age-based harassment. Moreover, we note that management explicitly denied making those negative remarks.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
____7/5/12______________
Date
1 Complainant also alleged that the Agency discriminated against him on the bases of disability and age when management hired a younger attorney by placing an advertisement in a claimant attorneys' association private listing rather than using a civil service announcement. The Agency dismissed this claim for failure to state a claim, finding that Complainant did not allege any harm or loss in connection with the recruitment method. We decline to address the dismissal in this decision, as Complainant did not specifically challenge the dismissal on appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9,
� IV.A. (Nov. 9, 1999) (the Commission has the discretion to only address the issues specifically raised on appeal).
2 On appeal, Complainant alleged that the Agency discriminated against him on the basis of reprisal (instant EEO complaint) when: (a) in August 2009, after being promoted to Senior Attorney Adjudicator, he was barred from performing the pre-hearing review duties of that position; and (b) shortly after filing his notice of appeal, he was informed that he was to be put on a pre-probationary plan for three weeks to determine whether formal probation would be necessary. If he has not already done so, we advise Complainant to contact an EEO Counselor if he wishes to pursue these reprisal claims.
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0120101008
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101008