Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Feb 11, 2015

0120133228 (E.E.O.C. Feb. 11, 2015)

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

,
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120133228

Agency No. ATL-12-0503-SSA

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated August 5,
2013, finding no discrimination concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final decision
finding no discrimination.

BACKGROUND
In his complaint, filed on May 30, 2012, Complainant, a former employee at the Agency,
alleged discrimination based on sex (male), race (Black), age (over 40), and in reprisal for
prior EEO activity when:

(1) On April 16, 2012, he received a memorandum entitled “Notice for Placement in Paid,
Non-Duty Status” that proposed to remove him from federal service.

(2) He was subjected to harassment in that: (a) on April 16, 2012, his supervisor, Hearing
Office Director, attempted to pressure him into signing the memorandum by telling him
that his signature would only serve as acknowledgement that he received the form; (b)
on April 16, 2012, as he was leaving the Director’s office after receiving notification of
his proposed termination, the Director provokingly stepped in front of him twice to
offer him a box to put his “stuff” in; and (c) on April 16, 2012, he was given a short
period of time to pack up his belongings at his desk and was escorted by security the
entire time.

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After completion of the investigation of the complaint, Complainant did not request a hearing
and the Agency, thus, issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its actions, which Complainant failed to rebut.1

ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614

, at Chapter 9, § VI.A. (November 9, 1999) (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”).
After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was a
Contract Representative, GS-962-7, in the Agency’s North Office of Disability Adjudication
and Review, Atlanta, Georgia. Complainant’s supervisor indicated that he issued the notice of
proposal to remove on April 16, 2012, due to Complainant’s conduct unbecoming a federal
employee; failure to comply with leave procedures; and failure to follow a directive.
Specifically, the supervisor stated that on November 14, 2011, and on December 9, 2011, he
received complaints from two different customers, law firms, informing him of their
unpleasant interactions with Complainant; on October 27, 2011, his employee came into his
office shaking and crying after her interaction with Complainant; and on February 28, 2012,
Complainant reset his coworker’s computer password without permission to do so.

The supervisor also indicated that Complainant, at the same time, was also issued the Notice
for Placement in Paid, Non-Duty Status, to remove him from his workspace until a decision
was made on a previously issued proposal to remove. Specifically, the supervisor stated that
he issued Complainant the subject notice because Complainant was angry, loud, aggressive,
discourteous, and disrespectful toward his coworkers causing a potential safety and security
threat. The supervisor stated that Complainant subsequently retired on May 16, 2012, and thus
no decision on the proposed removal was made. We note that Complainant’s retirement is not
a live issue in this case.

The supervisor denied harassing Complainant. Specifically, the supervisor indicated that he
informed Complainant that his signature on the notice of proposed removal was merely

1 The Agency indicated that Complainant failed to cooperate with the investigation of the case,
i.e., by failing to cooperate with the investigator to prepare an investigative affidavit or
complete the investigative interview. Complainant does not dispute this.
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acknowledgement of his receipt thereof and he declined to sign such. The supervisor also
denied stepping in front of Complainant; rather, since the security guard was present to escort
Complainant from the work area, he walked a few steps behind Complainant to offer him a
box after Complainant had already exited his office. The supervisor acknowledged that
Complainant was given a short period of time to pack up his belongings at his desk and
assigned a security escort. The supervisor denied he discriminated against Complainant
concerning the alleged incidents.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. With regard to his claim of
harassment, we find that Complainant failed to establish that the conduct in question was
related to any protected basis of discrimination. We find that Complainant failed to show that
he was treated less favorably than a similarly situated employee under similar circumstances.
Based on the foregoing, we find that Complainant failed to show that the Agency’s actions
were motivated by discrimination as he alleged.

CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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.
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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

Date
February 11, 2015