01a40287
07-07-2005
James E. Cossman, Complainant, v. JoAnn Johnson, Chairman, National Credit Union Administration, Agency.
James E. Cossman v. National Credit Union Administration
01A40287
July 7, 2005
.
James E. Cossman,
Complainant,
v.
JoAnn Johnson,
Chairman,
National Credit Union Administration,
Agency.
Appeal No. 01A40287
Agency No. 99-05
Hearing No. 210-A0-6174X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that complainant, Director of Insurance at the agency's
Lisle, Illinois facility, filed a formal EEO complaint on March 22,
1999, alleging that the agency discriminated against him on the bases
of disability and age (born July 25, 1948) when:
In November 1998, he was denied reassignment to either of two Supervisory
Examiner, CU-15 positions in Chicago, Illinois;
In December 1998, he was denied reassignment to a Supervisory Examiner,
CU-15 position in Detroit, Michigan;3
In March 1999, he was not selected for the position of Region II
Associate Regional Director of Operations;
In November 1999, he was denied a developmental reassignment to an
Acting Supervisory Examiner position; and
His second-level supervisor subjected him to harassment when he:
referred to complainant by abusive and demeaning names and
characterizations;
made demeaning remarks about his age and disability;
used abusive and offensive language;
made inappropriate remarks and inquiries about when complainant will
retire; and
sought to intimidate complainant by losing his temper and yelling in
the presence of others.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On April 16, 2001, the agency filed a
motion for a decision without a hearing on all of complainant's claims.
On February 19, 2002, the AJ partially granted the agency's motion
on claims 2 and 3, and with respect to all of complainant's claims of
disability discrimination. Following a hearing, the AJ issued a decision
finding no age discrimination on claims 1, 4, and 5. The agency's final
order implemented the AJ's decision.
On appeal, complainant primarily argues that the AJ improperly found
no discrimination on claim 1. He contends that because one selectee
for the Chicago positions was 34 years of age and the other 44 at the
time of the selections, age discrimination should be found on claim 1.
Complainant further notes that witnesses confirm that his second-line
supervisor (S2) used the terms �grandpa� and �mother hen� to describe him,
supporting his claim that he was subjected to a hostile work environment
based on age. The agency requests that we affirm its final order finding
no discrimination.
The record reveals that complainant, as Director of Insurance, reviewed
the application of the agency's membership policies. On July 30, 1996,
the District of Columbia Circuit Court of Appeals ruled that the agency's
membership policies were illegal. On August 2, 1996, complainant,
distressed by the court decision, suffered a heart attack at the office
picnic and underwent angioplasty surgery. After returning to work in
September 1996, complainant requested reassignments to Supervisory
Examiner (SE) positions in Chicago and Detroit. In September 1998,
complainant applied for a Region II Associate Regional Director of
Operations position but was not selected in March 1999. Complainant
contends that the agency failed to select him for the reassignments
because of his age and disability. Complainant contends that contrary
to the agency's claim that he voluntarily withdrew his request for the
Detroit SE position, he never withdrew his request for the reassignment,
only the formal merit promotion application �for medical reasons� the
day before the interview because he was informed that he had to have a
second angioplasty surgery immediately. Complainant maintains that he
could not cope with the stress of a job interview for the position at
the same time as cardiac surgery. Nevertheless, complainant contends
that the agency could have approved him for the Detroit reassignment
without a formal application because it was a lateral transfer at
the same grade. Complainant further alleged that he was denied a
developmental reassignment to an Acting Supervisory Examiner position
in November 1999, although he was later given the assignment in 1999 or
2000 and the selectee was in �his fifties.�
Complainant also maintains that his supervisors were aware of that his
heart condition was having an impact on his ability to work because he had
a discussion with S2 during a meeting about the need for a reassignment
because of the stress of his position could affect his heart condition.
Regarding his hostile work environment claim, complainant maintains
that S2 acted in an offensive manner by cursing and yelling and him.
He further alleged that S2 called him �grandpa� in a meeting on November
2, 1998, �mother hen� on another occasion, and inquired when he was
planning to retire, reflecting age discrimination. S2 responded that
he called complainant �grandpa� as a descriptive term for the meticulous
approach complainant gave to his work. S2 denied using the term �mother
hen,� but the Associate Regional Director for Region IV (ARD) remembered
S2 using the term on three or four occasions to describe complainant's
mannerisms.
S2, the selecting official for the Chicago positions, stated that he
filled the positions after discussing the applicants with the ARD.
S2 and ARD testified that the position required a strong problem-solver
and motivator and found that based upon their personal knowledge of
complainant's work, complainant was not the best choice for the position.
S2 contended that one of the selectees was the best choice for the
position because of his ability to deal effectively with a state regulator
that was giving the agency problems. S2 further contended that concerns
about complainant's ability to handle and manage workloads was a further
factor in not selecting him. The agency maintains that complainant was
not selected for the Detroit position because he withdrew his request
for reassignment to this position. Agency officials further testified
that complainant was not selected for the Region II Associate Regional
Director of Operations position because an outside candidate emerged
as an outstanding candidate for the position because of her leadership
skills and experience. The Director of the Office of Human Resources
also stated that she was concerned about complainant's acknowledgment
that he was methodical, which she thought would slow production in the
Region II Associate Regional Director of Operations position. She noted
that even complainant's performance appraisal reflected her concerns
about complainant's ability to maximize productivity.
Complainant's supervisors all testified that although they were aware
that complainant suffered a heart attack, they did not view his request
for a reassignment as a request for a reasonable accommodation because
complainant never mentioned that he was seeking a different position
because of his medical condition. The agency further maintained that
complainant's request for developmental reassignment was denied because
the agency needed his special expertise in his existing Department of
Insurance assignment. S2 stated that complainant had more expertise
on a new regulation that was going to take effect in January 1999 than
anyone else in the Region IV Office and was a member of the task force
that wrote the regulation.
Claims 1, 4 and 5
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.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions. See
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited
reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of claims 1 and 4, we find that the agency offered legitimate,
non-discriminatory reasons for each of the alleged actions, as reviewed
above. We further find that complainant failed to provide any persuasive
evidence that the reasons offered by the agency were pretext for age
or disability discrimination. Consequently, we affirm the AJ's finding
of no discrimination for these matters. Regarding complainant's hostile
work environment claim, we note that in assessing whether the complainant
has set forth an actionable claim of harassment, the conduct at issue
must be viewed in the context of the totality of the circumstances,
considering the nature and frequency of offensive encounters and the span
of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b);
EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050,
No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request
No. 05970077 (March 13, 1997). However, as noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), "simple
teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and
conditions of employment." The Court noted that such conduct "must be
both objectively and subjectively offensive, [such] that a reasonable
person would find [the work environment to be] hostile or abusive, and
... that the victim in fact did perceive it to be so." Id. See also
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark
County School Dist. v. Breeden, 532 U.S. 268 (2001). We find that the
matters alleged in claim 5 were not severe or pervasive enough to alter
the conditions of complainant's work environment and create a hostile
work environment. Therefore, we also find that the AJ properly found
no harassment.
Claims 2 and 3
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, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
Upon review, we find that the agency offered legitimate,
non-discriminatory reasons for its actions for claims 2 and 3.
Specifically, the agency responded that complainant was not selected
for the Detroit position because he withdrew his application and was
not selected for the Region II Associate Regional Director of Operations
because of concerns about complainant's productivity and the outstanding
leadership skills and managerial experience of the selectee. Complainant
maintains that despite withdrawing his formal application, the agency
could have informally selected him for the Detroit position. However,
we determine that even if complainant's claim is true, complainant's
withdrawal of his application communicated his desire not to compete
for the Detroit position. We find that complainant failed to provide
any evidence from which a reasonable fact-finder could conclude that
the agency's reasons for its actions were pretext for age or disability
discrimination. Therefore, we find that the AJ properly issued a decision
without a hearing finding no discrimination for claims 2 and 3.
Reasonable Accommodation
Complainant contends that the agency failed to reasonably accommodate his
disability when it failed to reassign him to the requested positions.
Assuming arguendo that complainant is an individual with a disability
entitled to coverage under the Rehabilitation Act, we note that the
record contains documents dated October 23, 1998, November 2, 1998, and
June 9, 2000 wherein complainant requested a transfer from his Region
IV Director of Insurance position to a Supervisory Examiner position.
Noticeably, there is no mention of complainant's medical condition in
the letter or request for accommodation, although complainant detailed
other specific reasons why he desired the transfers. Moreover, in a
memorandum dated November 9, 1998, S2 stated complainant had requested
reassignment during a meeting because he was tired of his job and had
earned it. Complainant contends that he verbally mentioned that his
request for a reassignment was related to his medical condition during
a meeting with S2. However, complainant has offered no evidence beyond
this bare assertion to support his claim that he requested a reasonable
accommodation, and his own writings from the relevant time period
reflect that he did not communicate to the agency that his request for
a reassignment was related to his medical condition. Further, we find
that there is no evidence that complainant's need for an accommodation
was so apparent in this case that the agency was obligated to seek an
accommodation for his disability. Consequently, we find that complainant
failed to provide any evidence from which it could be concluded that the
agency denied him a reasonable accommodation for his claimed disability.
Accordingly, after a careful review of the record, we discern no basis to
disturb the AJ's findings. We find that complainant failed to establish
that any of the agency's actions were motivated by discriminatory animus
toward complainant's age or disability. Therefore, after a careful
review of the record, including complainant's contentions on appeal,
the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final order.
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
__July 7, 2005________________
Date