0120073066
10-12-2007
Madison Davis, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Madison Davis,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120073066
Agency No. DAL05215SSA
DECISION
On June 19, 2007, complainant filed an appeal from the agency's May 16,
2007, final decision 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision (FAD).
Complainant alleged hostile work environment harassment and retaliation
for prior EEO activity in violation of Title VII when: (1) on January
20, 2005, he received an e-mail instructing him to reconstruct a file to
falsely show that an immediate payment had been paid to a beneficiary.
Since complainant had been threatened with disciplinary action by the
previous District Manager if he failed to follow orders, he spoke with
the Assistant District Manager (ADM), who advised complainant to "do the
right thing;" and (2) on March 2, 2005, his supervisor (S1) informed him
that he needed to speak with complainant about an allegation of rudeness
towards a beneficiary, and he was considering disciplinary action.
The agency ultimately accepted those claims for investigation, and
added the following claim: (3) complainant was suspended for five (5)
days effective July 4, 2005 through July 8, 2005.1
The record reflects that complainant was employed by the agency as a
Service Representative, GS-962-08, at the Little Rock, Arkansas District
Office ("facility"). S1 was the facility's Operations Supervisor, and
his second-line supervisor (S2) was the facility's District Manager.
Regarding complainant's first allegation of discrimination, he claimed
that the facility's Management Support Specialist (MSS) sent him an e-mail
on January 18, 2005, instructing him to duplicate a Critical Payment
System (CPS) input and falsify records. In addition, complainant alleged
that on March 1, 2005, he had his first interview with an EEO counselor
and the next morning S1 said he needed to speak with complainant about an
allegation of rudeness towards an agency client. Complainant stated that
all of his interviews the previous day were cordial and no agency client
expressed dissatisfaction. Complainant further alleged that S1 stated
he discussed complainant's rudeness in the past and was contemplating
disciplinary action. Complainant alleged that S1 later approached him and
asked him if he needed union representation; during an ensuing meeting,
S1 stated that complainant was not the agency representative involved
in the direct deposit issue. Complainant alleged that management's
harassment caused him "mental, emotional and psychological injury"
and may make him unable to perform his position.
Believing he was the victim of discrimination, complainant sought
EEO counseling and filed the aforementioned formal complaint. At the
conclusion of the investigation, complainant was provided with a copy
of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant failed to prove that
he was subjected to discrimination as alleged.
The FAD initially found that complainant failed to establish a prima
facie case of reprisal, as there was no nexus between complainant's prior
EEO activity and the actions the agency took when: (1) management asked
complainant to reconcile a beneficiary's record; and (2) management
addressed an allegation of rudeness with complainant. In addition,
the FAD found that complainant failed to establish that management's
actions constituted harassment.
The FAD then found that assuming, arguendo, that complainant established
a prima facie case of retaliation and harassment, the agency articulated
legitimate, nondiscriminatory reasons for its actions. Initially, the FAD
noted that S1 stated the relevant MSS informed him that she was missing
documentation for an immediate payment which complainant initiated.2 S1
stated that ultimately the payment at issue was determined not to have
been paid and there was no need to redraft the documentation; however,
S1 stated that any employee would have been asked to redraft missing
documentation. S2 stated that he had no involvement in this issue,
and complainant's claim was not an example of hostile work environment
or retaliation for prior EEO activity. He stated that if a document
related to monthly payments by the office was not available, the MSS would
have requested an explanation from the employee involved in the process.
Further, the Assistant District Manager stated that his only involvement
in the process was to clarify which actions needed to be taken, after it
was initially determined that a payment had been made without adequate
documentation. The Assistant District Manager stated that he was unaware
of any threat from the District Manager to complainant; rather, it was
complainant's responsibility to correct the action to prevent hardship
regarding the possible overpayment. The MSS stated that complainant
was not told to reconstruct any files other than to report what happened
with the potential overpayment. She also stated that she was not aware
of any threats of disciplinary action taken against complainant.
Regarding complainant's allegation (2), the FAD noted that S1 stated that
he had previously discussed with complainant allegations of inappropriate
behavior towards customers. S1 stated that as these allegations could
result in disciplinary action against complainant if substantiated, he
was obligated to allow complainant to have a union representative present
during the discussion. The FAD noted that the District Manager stated a
supervisor has the obligation to investigate allegations of rudeness made
by the public, which included obtaining information from the employee;
he stated that the information he received was that complainant refused
to provide requested information. The District Manager stated that S1's
actions were routine, warranted and essential to the resolution of the
customer's allegations of rudeness by an agency employee, and there was
no harassment. The Assistant District Manager stated that he was unable
to substantiate that anyone in management was soliciting complaints
targeting complainant or anyone else. He stated that complaints
made against complainant were unsolicited by management and made by
individuals in unrelated instances who felt they had not been treated
appropriately or with courtesy. Further, the FAD found that complainant
failed to proffer evidence which establishes that the agency's legitimate,
nondiscriminatory reasons for its actions were pretextual.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
With regard to complainant's allegations, we find that, again assuming
arguendo complainant established a prima facie case of retaliation, the
agency articulated legitimate, nondiscriminatory reasons for its actions.
Regarding complainant's allegation (1), agency management stated that
there was missing documentation for an immediate payment which complainant
initiated and had shown up on a payment verification list. The record
indicated that the immediate payment at issue was determined not to have
been issued and there was no reason to account for the documentation.
The agency's Operations Supervisor (S1) stated that any agency employee
would be asked to account for missing documentation for a payment.
Similarly, S2 stated that if a document related to a payment was not
available, an explanation was required from the employee involved in
the process. The statements of the agency managers involved does not
indicate that complainant was asked to reconstruct any files to falsely
show that an immediate payment had been made to an agency beneficiary;
rather, the record indicates that complainant likely coded an incorrect
Social Security Number into the agency's critical payment system and
incorrectly processed an immediate payment, but the mistake was caught
before a payment was made. The record indicates that complainant was
asked to provide documentation for the payment under a routine process
mandated by the agency to ensure that immediate payments to complainants
were proper.
Regarding complainant's allegation (2), the record indicates that
management officials stated that when complaints were received by
claimants regarding agency employees, it was their responsibility
to investigate the allegation by notifying the employee involved in
the complainant and offer to have a union representative present if
disciplinary action might be involved. The record indicates that
there were several incidents brought by members of the public about
complainant's rudeness to them. As noted by the FAD, the record contains
no evidence that the attempts of S1 to obtain information from complainant
about the incident(s) at issue or his offer of union representation
were other than routine agency procedures under the circumstances.
In addition, we find that complainant failed to proffer evidence which
establishes that the agency's articulated reasons for its actions were
more likely than not pretextual in nature. We note that complainant
argues that the agency's actions constituted harassment. We find,
however, that even taken the facts in the light most favorable to
complainant, he failed to proffer any evidence to refute the agency's
reasoning for such contact. We further find that the agency's actions
were not sufficiently severe or pervasive to constitute harassment due
to a hostile work environment.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
FAD.
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
__10/12/07________________
Date
1 The agency dismissed complainant's allegation of reprisal discrimination
regarding the issue of the five (5) day suspension in July of 2005.
Subsequently, the agency found that complainant filed a grievance
regarding this issue, and dismissed the complaint after it was
investigated. As such, the FAD stated that it would not address the
suspension issue in the decision as it was addressed in the grievance
forum.
2 The record indicates that complainant had mistakenly coded an incorrect
Social Security Number into the critical payment system and processed
an immediate payment on the wrong number, but the mistake was caught
before a check was issued. The Assistant District Manager stated that the
office's system showed that a payment had been issued and no documentation
was input regarding the mistake. The Assistant District Manager stated
that if the mistake had not been corrected, the claimant could have been
charged with duplicate payments which they had not received.
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0120073066
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073066