Kirby S.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 16, 2017

0120150601 (E.E.O.C. Nov. 16, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Kirby S.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120150601

Hearing No. 410-2013-00357X

Agency No. ATL-12-0205-SSA

DECISION

On November 25, 2014, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 29, 2014, 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., 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. For the following
reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Area Director, GS-
15, at the Agency’s Georgia District Office in Atlanta, Georgia. On April 26, 2012, Complainant
filed an EEO complaint alleging that the Agency discriminated against him on the bases of race
(Native American), sex (male), disability, age (57), and in reprisal for prior protected EEO
activity by subjecting him to harassment and a hostile work environment when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. Complainant was notified of his non-selection for Class VI of the SES (Senior
Executive Service) Candidate Development Program;

2. Complainant was instructed not to attend the Regional Commissioner’s visit to
the Savannah, Georgia office;

3. Complainant’s request for local travel reimbursement for the period of December
13-29, 2011, was denied;

4. Complainant’s overnight voucher was “slow walked” through the approval
process, which resulted in Complainant having to use his own funds to pay his
government credit card bill;

5. in 2011, Complainant received a “Fully Successful” rating on one element of his
performance appraisal, which resulted in an overall score of “Excellent” instead
of “Outstanding;”

6. during a meeting with the Regional Commissioner, Complainant was advised that
a candidate he recommended for Deputy Director was not selected;

7. the Regional Commissioner yelled, cursed at, and threatened Complainant,
including suggesting that Complainant file an EEO complaint against him as “you
[Complainant] are good at that kind of shit;”2 and

8. in 2012, Complainant received one “Fully Successful” rating and one “Excellent”
rating on two elements of Complainant’s performance appraisal, which resulted in
an overall score of “Excellent” instead of “Outstanding.”

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the
Agency’s motion for a decision without a hearing on September 15, 2014. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.

2 The statement allegedly made by the Regional Commissioner (RC1) as quoted in Claim 7 of
the complaint, urging Complainant to file an EEO complaint against RC1 appears designed to
criticize Complainant for his prior protected activity. Any such criticism by a manager would
implicate the antiretaliation provisions of the statutes enforced by the Commission. See Nathan
S. v. United States Postal Service, EEOC Appeal No. 0120171690 (August 9, 2017). The
Commission reminds the Agency that it has an affirmative obligation to prevent and remedy
retaliation whether through training, discipline or otherwise.
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ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).

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 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. 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.

We find that this matter does not present a genuine issue of material fact requiring a hearing.
Although Complainant identifies many factual disputes between the parties, (see Complainant’s
Appeal Statement at 5-32) none of those disputes, even if resolved in Complainant’s favor,
would affect the outcome of the case. For that reason, we agree with the AJ’s conclusion that a
hearing was not warranted.

Disparate Treatment Discrimination - Claim 1 - Nonselection

Although explicitly limiting his complaint to a theory of “harassment and a hostile work
environment,” Complainant sought to prove discrimination with respect to Claim 1
(nonselection) as a discrete event on disparate treatment and direct evidence grounds. To prevail
on a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that he was subjected to an
adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with where the Agency has articulated legitimate, nondiscriminatory reasons
for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
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Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the
Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

According to the Agency, Complainant was not selected for the position because his
“communication and interaction skills” were not what would be expected of an SES candidate.
It is for that reason that he was not recommended for the position by his second line supervisor,
RC1. This failure by RC1 to recommend him for the position ultimately resulted in
Complainant’s application not being considered by the selecting official. This is a legitimate,
nondiscriminatory reason for the Agency’s action.

Complainant seeks to avoid summary judgment on his nonselection claim by offering various
grounds for impeachment of RC1’s testimony. Complainant argues, for example, that in the past
RC1 has made repeated positive, complimentary statements about Complainant’s job
performance which were inconsistent with his refusal to recommend Complainant’s promotion.
Complainant’s Appeal Statement at 10. This argument is unavailing. Impeachment of RC1’s
testimony by pointing out his prior inconsistent statements does not constitute the type of
affirmative proof necessary to establish pretext. As the Supreme Court has observed,
“‘discredited testimony is not [normally] considered a sufficient basis for drawing a contrary
conclusion.’ Instead, the plaintiff must present affirmative evidence in order to defeat a properly
supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., supra at 256-57
(citation omitted). Here, Complainant has failed to present such evidence.

Alternatively, a complainant may establish pretext by showing that his qualifications were
plainly superior to those of the selectees. Wasser v. Dep't of Labor, EEOC Request No.
05940058 (November 2, 1995); Bauer v. Baitar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here,
Complainant did not attempt to make such a showing. Complainant’s appeal statement does not
address the question of how Complainant’s qualifications compare with those of the selectees.
Indeed, Complainant admits having no knowledge of the selectees’ qualifications. See ROI,
Affidavit A at 14.

Direct Evidence of Discrimination

Complainant also sought to prove that he was discriminated against with respect to this
nonselection by direct evidence. According to Complainant, two witnesses heard the selecting
official (in this case, the incumbent Commissioner of Social Security) say he wanted to select
“30 somethings” exclusively for leadership positions. Complainant’s Appeal Statement at 33.
Our review of the evidence (see ROI Affidavits H and I) shows that the statements attributed to
the selecting official did not relate directly to the selections at issue here but were part of a
generalized, informal discussion of succession planning policies. Legitimate succession
planning does not constitute discrimination against older workers. See Tellez v. Dept. of the
Army, EEOC Request No. 05A41133 (March 18, 2005). This evidence is insufficient to prove
age discrimination by direct evidence.

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Hostile Workplace Harassment - Claims 1-8

It is well-settled that harassment based on an individual’s statutorily protected bases is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of harassment, Complainant must show that: (1) he belongs to the statutorily protected
classes or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to
his membership in those classes or his prior EEO activity; (3) the harassment complained of was
based on those classes or that activity; (4) the harassment had the purpose or effect of
unreasonably interfering with his work performance and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability to the employer. See
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

To prove his harassment claim, Complainant must establish that he was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant’s position would
have found the conduct to be hostile or abusive. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993). Complainant must also prove that the conduct was taken because of a protected basis –
here, because of his race, sex, age, physical disability, or prior protected activity. Only if
Complainant establishes both of those elements -- hostility and motive – can he prevail on his
harassment claim.

In this case, there is no evidence that any of the claimed harassing actions committed by Agency
management were taken because of any protected basis. There is no evidence from which to
infer, for example, that the Agency delayed reimbursement of Complainant’s travel expenses
(Claim 3) or failed to follow his hiring recommendations (Claim 6) because of any of his
statutorily protected classes. Nor is there evidence of racist slurs or disability-based ridicule that
would support an inference of discriminatory animus. Without evidence of this nature,
Complainant’s harassment claim fails.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order fully implementing the AJ’s
decision finding that Complainant had not proven discrimination..

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 16, 2017
Date