01a03598
08-22-2000
Franklin Smithson, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Franklin Smithson v. Social Security
01A03598, 01976916
August 22, 2000
.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 19848
Washington, D.C. 20036
Franklin Smithson,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A03598, 01976916
Agency No. SSA930372, SSA980180
Hearing No. 120-99-6412X
DECISION
INTRODUCTION
Complainant timely initiated appeals from a final agency decision
and a final agency order concerning his equal employment opportunity
(EEO) complaints of unlawful employment discrimination in violation
of the the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791,
et seq.<1> The appeals are accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405) and consolidated.
Complainant alleges that he was discriminated against on the basis of
physical disability (degenerative disk disease) and in retaliation for
having engaged in protected EEO activity when:
(1) he was nonselected for a variety of positions;
(2) the agency used his surname in an agency publication in a manner
complainant regarded as demeaning; and
(3) the agency released information from his personal Social Security
disability file without authorization.
BACKGROUND
The record reveals that complainant, a GS-12 Social Insurance Specialist
at the agency's Office of Disability Operations in Baltimore, Maryland,
made an informal EEO complaint to the agency alleging that the agency
had discriminated against him on the basis of physical disability when
it published an internal procedural manual which discussed various
hypothetical situations involving fictitious claimants. One of these
fictitious claimants was given the surname Smithson. Complainant believed
that the agency meant this as a reference to him and he regarded it
as demeaning. In a settlement agreement dated July, 1992, the agency
agreed to discontinue the use of the Smithson name in future editions
of the publication.
On February 24, 1993, complainant filed a formal EEO complaint<2>
alleging that 1) on January 20, 1993 he was not selected for three
vacancies for which he had applied<3>; 2) from 1979 until the date of
filing, in violation of the July 1992 settlement agreement, the agency
had continued to use his surname in its publication; 3) for an unspecified
period of time, the agency engaged in unauthorized release of information
from complainant's Social Security disability file.<4>
The agency wrote to complainant, accepting the complaint. However,
the acceptance letter listed as issues raised by the complaint only the
nonselection claims and made no reference to the breach of the settlement
agreement or the release of information from his disability file.
Following an investigation, the agency issued a FAD, dated May 15, 1995,
addressing only the nonselection issues and finding no discrimination.
Complainant appealed the FAD to this Commission.<5> We reversed and
remanded the entire complaint. With respect to the issues omitted
from the FAD, we directed that the use of complainant's name issue be
remanded and processed as an allegation of settlement breach, pursuant
to 29 C.F.R. � 1614.504. We ordered that the allegation concerning
improper release of information be remanded to permit the agency to
determine whether the claim should be accepted or dismissed.
Concerning the nonselection issue, we held as follows:
the Commission notes that the present FAD fails to set forth
any of the material facts of the case, fails to set forth the law
applicable to the case; and fails to apply the law to those facts in
an instructive way, thereby depriving [complainant] of a meaningful
right of appeal. . . .Therefore, on remand, the agency is instructed
to provide [complainant] with a FAD which sets forth the material facts
of the case and explains with particularity, not only the law which is
applicable to his complaint, but whether and why [complainant] has or
has not established his claim. [citations omitted, emphasis supplied]
Following the remand, the agency issued a partial FAD, dated September 17,
1997, finding no discrimination in connection with the three nonselection
claims but deferring decision on the remaining claims. From that FAD
complainant brings one of the consolidated appeals now before us.
On December 10, 1997, complainant filed a second formal complaint<6>
alleging that he had been discriminated against when he was nonselected
for a fourth position for which he had applied.<7> The agency accepted
that complaint and conducted an investigation. At the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ conducted a hearing addressing the
nonselection issue from the 1997 complaint as well as the unresolved
issues from the 1993 complaint.
With respect to the nonselection issue, the AJ held that complainant had
failed to establish a prima facie case and, alternatively, that the agency
had articulated a legitimate, nondiscriminatory reason for its actions
which complainant had failed to prove to be a pretext for intentional
discrimination. With respect to the improper use of complainant's name,
the AJ held that the complainant failed to state a claim. Concerning the
improper release of confidential information from complainant's disability
file, the AJ held that complainant had failed to bring the matter to
the attention of an EEO counselor in a timely manner.
The agency's final order implemented the AJ's decision. From that order
complainant brings the second of the consolidated appeals now before us.
FINDINGS AND ANALYSIS
After a careful review of the record, the Commission finds that the FAD
should be REVERSED with respect to one of complainant's nonselection
claims and AFFIRMED with respect to the balance of the nonselection
claims. We further find that the final agency order implementing the
AJ's decision should be AFFIRMED.
Appeal No. 01976916 (Nonselection)
Disability Discrimination.
In order to establish a prima facie case of disability discrimination,
complainant must show that he is a qualified person with a disability and
that the agency treated him less favorably than individuals not within
his protected group or that it failed to make a reasonable accommodation
for his disability.<8> In addition, complainant must show that there is
a nexus or causal relationship between the disabling condition and the
challenged agency action. See Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981); Visage v. Department of the Air Force,
EEOC Request No. 05940993 (July 10, 1995). In order to establish a
causal relationship, it must be shown that the agency had knowledge of
complainant's disabling condition at the time it took the challenged
action. Martin v. United States Postal Service, EEOC Appeal No.
01954089 (March 27, 1997).
It is undisputed that complainant has degenerative disk disease.
However, the record contains no evidence whatever that any of the
agency managers involved in nonselections here at issue were aware of
his condition. Without such evidence, complainant cannot prove that
the agency intentionally discriminated against him. Accordingly, we
find that complainant has failed to establish a prima facie case of
disability discrimination.
Retaliation. Under the standards set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), in order to establish a prima
facie case of retaliation, complainant must show that: (1) he engaged
in prior protected activity of which relevant management officials
were aware; (2) he was subject to an adverse action; and (3) there
is a causal link between the protected activity and adverse action.
See Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
The causal connection may be shown by evidence that the adverse action
followed the protected activity within such a period of time and in such
a manner that a reprisal motive is inferred. See Devereux v. United
States Postal Service, EEOC Request No. 05960869 (April 24, 1997).
The record shows that complainant had engaged in prior protected
activity, i.e., his 1992 informal complaint that he was discriminated
against by the agency's use of his surname in what he regarded as a
demeaning way. It also establishes that complainant was subjected to
adverse actions when he was nonselected for three positions in 1993.
The record also shows a causal connection between the prior protected
activity and the adverse actions, which were temporally separated by
less than one year.
However, only in connection with one of the nonselections, Vacancy
Announcement No. M-662, has complainant shown that a relevant management
official was aware of complainant's prior protected activity. In that
case, one of the two managers who determined which applicants would
be interviewed for the position, acknowledged that he was aware that
complainant had made a complaint and that the matter had been settled.
Thus, we find that complainant has made out a prima facie case of
retaliation with respect to his nonselection for the position advertised
in Vacancy Announcement No. M-662 and that he has failed to do so with
respect to his nonselection for the positions advertised in Vacancy
Announcement Nos. M-647 and M-656.
Once a complainant has set forth a prima facie case, the burden
of production shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. McDonnell Douglas, 411
U.S. at 802-04. The agency may rebut the presumption of discrimination by
clearly setting forth, through the introduction of admissible evidence,
its reasons for not selecting complainant. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 254-255 (1981).
The agency's explanation must be sufficiently clear to raise a "genuine
issue of fact" as to whether discrimination occurred. Burdine, 450
U.S. at 254. Moreover, it must "frame the factual issue with sufficient
clarity so that [complainant] will have a full and fair opportunity to
demonstrate pretext." id. at 255-256; Parker v. United States Postal
Service, EEOC Request No. 05900110 (April 30, 1990) (citing Burdine, 450
U.S. at 256); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993), citing U.S. Postal Service Board of Governors v. Aikens, 460
U.S. 711, 716 (1983) and Burdine, 450 U.S. at 256. While the agency's
burden of production is not onerous, it must nevertheless provide
a specific, clear, and individualized explanation for the treatment
accorded the affected employee. Lorenzo v. Department of Defense,
EEOC Request No. 05950931 (November 6, 1997).
Here, the agency has failed to meet this burden. The explanation for
its failure to select complainant for the position advertised in Vacancy
Announcement No. M-662 is neither specific, clear, nor individualized.
Indeed, it is virtually nonexistent. The only description the FAD
contains concerning the process by which the agency decided not to
include complainant on a list of potential selectees is as follows:
�[two managers] reviewed the applications for reassignment eligibles,
of which [complainant's] was one, and did not conduct interviews because
interviews were not required for reassignment eligibles.�<9> Thus,
the only explanation for complainant's nonselection is that, based on
a review of his application, he was not selected. A less informative
explanation for an agency's hiring decision is difficult to imagine.
We hold that the agency did not adequately explain its decision not to
select complainant and that as a consequence, complainant was denied
a fair opportunity to demonstrate pretext. See Young v. Department of
the Treasury, EEOC Request 05940517 (October 13, 1995). Thus, we find
that complainant was retaliated against when he was not selected for
the position advertised in Vacancy Announcement Number M-662.
Appeal No. 01A03598 (Nonselection, Use of Name, Release of Confidential
Information)
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 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).
Based on a thorough review of the record evidence we conclude that the
AJ's decision should be affirmed. The decision summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We note, in particular, with respect to the nonselection claim, that the
record contained no evidence showing that the relevant managers were
aware either that complainant was disabled or that he had engaged in
prior protected EEO activity. We discern no basis to disturb the AJ's
decision.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, in Appeal No. 01976916
the Commission AFFIRMS IN PART and REVERSES IN PART the agency's final
decision and REMANDS the matter to the agency to take remedial actions
in accordance with this decision and the ORDER below. In Appeal
No. 01A03598, the Commission AFFIRMS the agency's final order.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
The agency shall offer complainant the position of SICE Disability
Specialist, GS-12, at its facility in Baltimore, Maryland or if a SICE
Disability Specialist, GS-12 position is unavailable, then a substantially
equivalent position in that area. Complainant shall be given a minimum
of fifteen days from receipt of the offer of placement within which
to accept or decline the offer. Failure to accept the offer within
the time period set by the agency will be considered a rejection of the
offer, unless complainant can show that circumstances beyond his control
prevented a response within the time limit.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant retroactive
to the date complainant would have been hired absent discrimination,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as result of
the agency's discriminatory actions. See Teshima v. United States Postal
Service, EEOC Appeal No. 01961997 (May 5, 1998); Feris v. Environmental
Protection Agency, EEOC Appeal No. 011934828 (August 10, 1995), request
to reopen denied, EEOC Request No. 05950936 (July 19, 1996); Rivera
v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994);
Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993). See also, Cobey Turner v. Department of the Interior, EEOC Appeal
Nos. 01956390 and 01960518 (April 27, 1998); Jackson v. United States
Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request
for reconsideration denied, EEOC Request No. 05930306 (February 1, 1993).
The agency shall afford complainant sixty (60) days to submit additional
evidence in support of his claim for compensatory damages. Within thirty
(30) days of its receipt of complainant's evidence, the agency shall issue
a final decision determining complainant's entitlement to compensatory
damages, together with appropriate appeal rights.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
The agency is further directed to post a notice in compliance with the
paragraph below entitled �Posting Order.�
The agency is further directed to make payment to complainant in
compliance with the paragraph below entitled �Attorney's Fees.�
POSTING ORDER (G1092)
The agency is ORDERED to post at its Baltimore, Maryland facility copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
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
August 22, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Agency No. SSA930372.
3These position were advertised in vacancy announcement numbers M-647
(Disability Examiner, SICE position, GS-12); M-656 (Supervisory SICE
Disability Specialist, GS-13); and M-662 (SICE Disability Specialist,
GS-12).
4It appears that complainant, for some years prior to his employment by
the agency, was a recipient of Social Security disability benefits.
5Smithson v. Social Security Administration, EEOC Appeal 01954393
(August 15, 1997).
6Agency No. SSA980180,
7This position was advertised in Vacancy Announcement No. H-1762 (Social
Insurance Specialist, GS-13).
8The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
9The affidavits of the selecting officials contained in the report
of investigation do not set forth any additional relevant information
concerning the selection process.