0120120195
03-26-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120120195
Hearing No. 451-2010-00255X
Agency No. ODAR-10-0242SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 20, 2011, 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. For the following reasons, the Agency's final order is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant, GS-07, at the Agency's National Hearing Center in Albuquerque, New Mexico. A coworker reported to management that Complainant, while working overtime, was using his office computer to search for apartments. Thereafter, management reviewed Complainant's overtime records and discovered many discrepancies. Management initially considered terminating Complainant, but instead, on December 30, 2009, decided that a formal reprimand would be issued.
On February 16, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (White), national origin (Hispanic), and color (Brown) when he received an official reprimand for overtime reporting discrepancies. Following an investigation by the Agency, Complainant requested a hearing, which was held on February 17, 2011.
The AJ found that Complainant failed to establish a prima facie case of discrimination but, even assuming arguendo that he had, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was issued a formal Letter of Reprimand because it was discovered that many of his overtime log entries were inaccurate. To show pretext, Complainant argued that other employees had discrepancies with regard to their overtime information as well, but they were not issued a reprimand. Complainant also maintained that all of his overtime records were reviewed while the records of coworkers were only spot checked. Complainant indicated that the supervisor that issued the Letter of Reprimand was discriminatory as he has made disparaging remarks about people who stutterer, people with weight problems, and because of people's sexual orientation.
The AJ found that Complainant failed to demonstrate that his race, color, and/or national origin were considered with regard to the issuance of the Letter of Reprimand. The AJ noted that while the supervisor may have had vile beliefs there was no evidence presented by Complainant that the supervisor's animus was the reason for the issuance of the Letter of Reprimand at issue. The AJ found that Complainant failed to show that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, among other things, Complainant contends that he was treated differently than his coworkers as his overtime reports were fully audited but theirs were only spot checked. Further, he maintains that the Agency failed to provide copies of his coworkers' audits even after he requested them in discovery. Complainant also contends that he was not given the opportunity to explain the discrepancies in his audit, and he was not told that disciplinary action was forthcoming. Complainant also asserts that many incidents occurred in the office for which there was no discipline, including continuous derogatory comments about persons with disabilities, weight problems, and sexual orientation. Complainant contends that the Agency's assertion that he frequently listed the same cases as completed on multiple overtime reports is not true. He explains that he was simply told to list the names of the cases that he worked on and was not told that only completed cases were to be placed on the list. Complainant maintains that the issuance of the Letter of Reprimand has caused him to experience extreme anxiety, depression, cessation of physical and social activities, and pain and suffering. Complainant contends that he continues to be subjected to reprisal.
In response, the Agency, among other things, requests that the AJ's decision be affirmed as Complainant has failed to show that the Agency's reasons for its actions were pretext for discrimination.
ANALYSIS AND FINDINGS
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.
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 final Agency order. We find that there is substantial evidence in the record to support the AJ's findings and determinations. Like the AJ, we find that, even assuming arguendo, Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, i.e., Complainant was accused of searching for apartments while he was supposed to be working overtime; and an audit was performed that showed many irregularities in his overtime log and as such he was issued a Letter of Reprimand. We also find support for the AJ's determination that Complainant failed to show pretext. The AJ's decision makes clear that, unlike other employees, there were extensive and multiple numbers of questionable entries in Complainant's overtime records, and that this difference played a major role in the discipline that he received.
On appeal, Complainant raises several contentions. At the outset, we note that AJ's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109. Upon review of the record, the Commission finds no evidence that the AJ abused her discretion in these matters. Moreover, to the extent that Complainant is alleging that he currently is being subjected to discrimination, he should contact an EEO counselor.
Accordingly, we find the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record. The Agency's final Order 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.
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
_3/26/15_________________
Date
2
0120120195
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120195