0120131016
05-14-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120131016
Hearing No. 480-2010-00497X
Agency No. SF-09-0921
DECISION
Complainant filed an appeal from the United States Equal Employment Opportunity Commission Administrative Judge's (AJ) decision concerning Complainant's equal employment opportunity (EEO) complaint. She alleged 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. The Commission accepts this appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative at the Agency's San Bernardino District Office in San Bernardino, California.
On December 28, 2009, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race and national origin (Hispanic/ Mexican) when, on September 25, 2009, Complainant received a Letter of Termination.
Complainant was appointed under the Federal Career Intern Program (FCIP). The program has a two-year probationary period before Complainant would become a permanent Federal employee. The conversion to permanent appointment was conditional, based on successful performance.
Complainant's first-line supervisor was the Operations Supervisor (Caucasian and American). Complainant's second-line supervisor was the Assistant District Manager ("Hispanic" and American). Her third line supervisor was the District Manager (Caucasian and non-Hispanic). The District Manager was the person who initially selected Complainant for the position and was also the decision maker with regard to the termination at issue.
The record shows that Complainant complained that she was not learning enough under her first mentor. The Agency assigned her a different mentor. Complainant had been assigned two mentors when other similarly situated employees were assigned only one.
On August 31, 2009, Complainant sent an email to her second-line supervisor, in which she complained about the lack of training. The second line supervisor interviewed the two women who were Complainant's trainers. They expressed their frustration with Complainant's progress. The second line supervisor concluded that there was no deficiency with the training, but he concluded that Complainant should be terminated.
On September 25, 2009, the District Manager issued Complainant a Termination Letter. The letter notified Complainant that she was being terminated for failing to follow agency instructions and protocol. The Letter cited three incidents, including the release of personally identifiable information to someone other than the claimant, as supporting the termination.
During Complainant's deposition, she stated that the only reason she believes there was a racially discriminatory aspect to her termination was that a Caucasian, non-Hispanic coworker received a promotion and Complainant did not. Complainant also alleged that her trainer asked Complainant not to speak Spanish, which Complainant believed was discriminatory, because Complainant was hired as a bilingual Claims Representative.
The Agency objected to the affidavits provided by three of Complainant's witnesses, arguing that the individuals did not supervise or mentor Complainant and had no personal knowledge of Complainant's performance.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The Agency moved for summary judgment. Complainant did not timely respond to the Agency's motion. The AJ issued a decision without a hearing finding no discrimination.
The AJ concluded that Complainant "was in two protected classes ('race-Hispanic'; national origin - Mexican), but she failed to establish a prima facie case of unlawful discrimination on either basis." The AJ reasoned that "Complainant was unable to proffer sufficient evidence of a genuine material dispute showing that there were other, similarly situated, employees not in her protected classes who had similar performance issues and who were not terminated." The AJ found that the Caucasian co-worker was not similarly situated to Complainant because Complainant failed to show that the co-worker's performance was similar to Complainant's performance.
Next, the AJ noted that Complainant did not deny that she made many mistakes. The AJ referenced the fact that the Termination Letter relied on the observations of Complainant's first-line supervisor and not the two mentors with whom Complainant had conflict. The AJ viewed the conduct of the coworkers to be, at best, co-worker harassment. The AJ found that "Complainant has indentified no reason related to her race or national origin to explain why these individuals - who self-identify as having the same protected characteristic - would treat her differently because of that characteristic." The AJ also stated that there was no evidence that the Agency had an official policy restricting speaking Spanish or that this was a condition of employment. The AJ found that Complainant failed to establish a genuine issue of material dispute or that any credibility determinations need to be rendered concerning the Agency's articulated reasons for termination. The AJ then concluded that the Agency was entitled to summary judgment as a matter of law.
The Agency's February 7, 2013 final order adopted the AJ's decision.
This appeal followed.
ANALYSIS
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 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.
Section 717 of Title VII states that "all personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination." To prevail in a disparate treatment claim, Complainant must establish that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
In this case, the record shows that Complainant was terminated and a person not of her race or national origin was retained. For purposes of our analysis, we will presume that Complainant established her prima facie claims. However, the prima facie inquiry may be bypassed, where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 (1983).
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The articulated reasons were that Complainant's performance did not meet management's standards, based on her first-line supervisor's observations and the termination was predicated on those reasons.
To ultimately prevail, Complainant must provide evidence that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). On appeal, Complainant argues that there is conflicting evidence regarding whether Complainant received extra mentoring or that management spent more time training Complainant than her Caucasian coworker. Complainant also argues that the Agency used the term "avers" and that this shows speculation and not evidence.
In this case, Complainant did not provide any evidence that challenged two of the Agency's three stated reasons. There was some evidence that raises a question as to whether the Agency regularly enforced a requirement that employees must flag an application from a homeless person in the processing system. The testimony is undisputed, however, regarding Complainant's mistaken release of personally identifiable information and failure to process a claim properly after speaking with the first line supervisor. Looking at all of the evidence in the light most favorable to Complainant, there is no relevant evidence that would show that the subject action was based on Complainant's race or national origin.
After a careful review of the record, we agree with the conclusion of the AJ that there was no genuine dispute of material fact. Therefore, we find that judgment as a matter of law for the Agency was appropriately entered in this case.
CONCLUSION
Accordingly, we AFFIRM the Agency's final action.
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 tends 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
May 14, 2015
__________________
Date
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0120131016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131016