01A21749
05-12-2003
Dean Dal Ben, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Dean Dal Ben v. Social Security Administration
01A21749
May 12, 2003
.
Dean Dal Ben,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A21749
Agency No. 99-0304-SSA
Hearing No. 370-00-2264X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency had discriminated against him on
the bases of race (Caucasian) and sex (male) when:
(1) management removed him from an awards panel based on accusations
from the local union president;
management was made aware of an implied physical threat made by an
American Federation of Government Employees' official and of a letter
harassing him from the union, but did not respond when he sought
assistance;
management required him to sign out on a display panel when going to
another location within the office; and,
management forced his removal from the position of Operations Supervisor
in August 1998.
Assuming, arguendo, that complainant established a prima facie case of
race and sex discrimination, the Commission finds that the agency removed
complainant from the awards panel due to unprofessional and offensive
behavior as recounted by the local union president. The record shows
that complainant's supervisor (S1: African-American female) investigated
the matter and determined that complainant's presence on the panel was
disruptive. Complainant contends that the other management official (M1:
African-American female) was permitted to remain on the awards panel even
though she was considered �moody and unapproachable.� The record however,
establishes that complainant had a history of not being able to get along
with his co-workers. In addition, unlike complainant, the union did not
request that M1 be removed from the awards panel. In fact, the union
suggested that M1 call the Employee Assistance Program because she had a
problem dealing with people � which she did. Under these circumstances,
we find that complainant did not provide any evidence that the agency's
removal of him from the awards panel was based on a discriminatory animus.
In regard to the union president's statement that complainant's
treatment of his co-workers was so flagrant and loathsome as to invite
harm by �pushing an employee to an extreme,� we have repeatedly 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 for the purposes of Title VII. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Service, EEOC Request No.05940695
(February 9, 1995). In the instant case, the union president's statement
was reviewed by S1 and she determined that there was no actual threat
of harm. Without more, the Commission does not find that this statement
amounts to actionable harassment.
We also find that the agency articulated legitimate, nondiscriminatory
reasons for requiring complainant to post his whereabouts whenever
he was responsible for covering the office reception area, which was a
rotating assignment. The record establishes that whenever complainant was
required to cover the office reception area, he could not be located or
was otherwise unavailable. His regular disappearance led management to
require that all employees post their whereabouts, not just complainant.
In regard to complainant's reassignment to the Area Director's office to
serve as an Area Systems Coordinator, the record reflects that complainant
was transferred because of management concerns about his disruptive
interactions with his subordinates. Complainant provided no evidence that
individuals similarly situated, but outside of his protected classes,
were treated more favorably under similar circumstances. Other than
complainant's unsubstantiated assertions, there is not a scintilla of
evidence that shows that the agency had a discriminatory animus when
they engaged in the aforementioned activity. Neither do we find that
the agency's actions amount to a hostile working environment.
Without more, complainant is not able to survive the agency's motion
for issuance of a decision without a hearing in its favor. Based on the
foregoing, and 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
order, because the Administrative Judge's issuance of a decision without
a hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred. In reaching this conclusion,
we note that even if we view the evidence in the light most favorable to
complainant, no reasonable fact-finder could find in favor of complainant.
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
May 12, 2003
__________________
Date