01A33519_r
08-22-2003
Mohammed M. Haque, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Mohammed M. Haque v. Social Security Administration
01A33519
August 22, 2003
.
Mohammed M. Haque,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A33519
Agency No. 02-0026-SSA
Hearing No. 210-A3-6026X
DECISION
On October 19, 2001, complainant filed a formal EEO complaint in which
he claimed that the agency discriminated against him on the bases of
his race (Asian), national origin (Indian), religion (Islam), and age
(52) when his employment was terminated during his probationary period
on September 13, 2001. Complainant had been employed by the agency as
a probationary Service Representative.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request
for a hearing. Without holding a hearing, the AJ issued a decision
finding no discrimination. The AJ found that complainant failed to
establish a prima facie case of age, race, national origin or religion
discrimination because he was unable to show that others not in his
protected class were provided with better training than the training he
received, that others were afforded a longer period of time to improve
than 45 days or that others were evaluated under an easier standard than
the standard he had to meet. The AJ concluded that despite additional
training, mentoring, and management feedback, complainant was unable
to perform at a fully satisfactory level. The AJ observed that during
complainant's training course, complainant's test scores averaged 65.1%
in the first half of training and 66.8% in the second half of training,
whereas the class averages for the same training periods were 82.37%
and 84.3%, respectively. The AJ noted that complainant had been placed
on a 45-day performance improvement plan which cited three primary areas
of concern: (1) interviewing the public; (2) knowing and applying the
technical aspects and rules of the Social Security, Supplemental Security
Income and Medicare Programs; and (3) reading computer queries to provide
answers to visitors and callers.
On April 21, 2003, the agency issued a final action adopting the AJ's
decision. It is from this final action that complainant now appeals.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
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.
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. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
As for complainant's claims of race, age, national origin, and religion
discrimination, we will assume arguendo that complainant has set forth
a prima facie case. We find that the agency articulated a legitimate,
nondiscriminatory reason for complainant's termination. The agency
stated that complainant's employment was terminated because he failed
to acquire the knowledge and skills necessary to sufficiently perform
his job as a Service Representative.
A review of the record reveals that complainant has not established that
the agency's reason for his termination was pretext intended to mask
discriminatory intent. Complainant claimed that his lack of success
in his position was due to the fact that he did not receive the same
type and degree of mentoring and training as other similarly situated
employees. Complainant also claimed that he was the oldest Service
Representative in the Chicago Loop District Office. Additionally,
complainant contended that he was terminated on September 13, 2001,
due to the September 11, 2001 attacks on the World Trade Center and the
Pentagon. We find that the record does not support complainant's claim
that he received less mentoring and training. Complainant received
mentoring, frequent management feedback, and supplemental training.
Complainant was provided one-on-one remedial training on reading the
Supplemental Security Income Display and the Master Beneficiary Record
and he also received morning and afternoon quiet/study time. We find that
despite such efforts to improve complainant's job performance, the record
indicates that complainant was unable to achieve a fully satisfactory
level of performance. We find that complainant has not produced any
persuasive evidence to show that his age was a factor in his termination.
We further find that complainant's claim that the September 11, 2001
tragedy caused his termination is misguided given that complainant was
informed on September 7, 2001, that he would be terminated. We find
that complainant has failed to show that his termination was motivated
by race, religion, national origin or age discrimination.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
order, because a preponderance of the record evidence does not establish
that discrimination occurred.
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
August 22, 2003
__________________
Date