0120072373
04-08-2009
Philip Z. Sobocinski, Jr, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Philip Z. Sobocinski, Jr,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120072373
Agency No. DAL 05 0262-SSA
DECISION
Complainant filed an appeal from the agency's March 1, 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. For the
following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Attorney Advisor at the agency's Office of Hearings and Appeals
facility in San Antonio, Texas.
On May 3, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of national origin (part Polish
ancestry), sex (male), and in reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:
1. On December 30, 2004, complainant received an oral admonishment
by the Acting Hearing Office Director (HOD);
2. On February 15, 2005, complainant received an official letter
of reprimand from his Group Supervisor (GS);
3. Complainant was suspended from his position of Attorney-Advisor,
GS-905-12, for two calendar days effective July 19, 2005; and
4. Complainant was subjected to a hostile work environment with
regard to the assignment of duties through being given more extremely
complex cases:
a) On November 23, 2004, complainant's Group Supervisor
(GS) dismissed as inadequate complainant's reasons (voluminous
case evidence and complexity of issues) for his inability to
complete a specific case.
b) On December 8, 2004, the Hearing Office Director handed
complainant a formal letter directing complainant to complete
a specific case by the close of business the following day.
By letter dated July 15, 2005, the agency dismissed claim (4) pursuant
to 29 C.F.R. � 1614.107(a)(1) on the grounds that the incidents of
harassment described in this claim were not so severe or pervasive to
state a claim of harassment. The agency accepted the remaining claims
for investigation.
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 dated March 1,
2007, pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the agency affirmed its earlier dismissal of claim (4),
on the ground noted herein, finding that complainant was not subjected
to harassment because the events described were neither severe nor
pervasive.
The agency further found that with respect to claim (1), that complainant
did not establish a prima facie case of discrimination based on either
sex or national origin. Specifically, the agency found that complainant
failed to identify any similarly situated employees who had engaged in
similar conduct but were treated differently by the HOD, the agency
official issuing the oral admonishment to complainant. The agency
found that the HOD described complainant's confrontational manner on
the identified occasion as rude, offensive and argumentative, and that
complainant raised his voice.
Regarding claim (2), the agency found that complainant did not establish a
prima facie case of discrimination based on his national origin or sex.
The agency observed that complainant claimed others were counseled
concerning their failure to meet multiple deadlines, but the agency
found that complainant did not present sufficient evidence that the
other employees were similarly situated in all relevant aspects, nor
any evidence showing that complainant's group supervisor was motivated
by complainant's national origin or sex when she issued the Letter
of Reprimand to him. The agency found that the sequence of events
surrounding the Letter of Reprimand and complainant's EEO activity
supported a prima facie case of reprisal discrimination, but that GS
had articulated a legitimate, nondiscriminatory reason for her actions
in that complainant's behavior was disrespectful and continued to fail
to meet deadlines, which she had documented.
With respect to claim (3), the agency again found that complainant
had not established a prima facie case of discrimination based on his
national origin or sex when complainant was suspended for two days.
The agency noted that complainant did not deny that prior to receiving
a management directive on March 11, 2005, he attempted to meet with GS
for the purpose of discussing his assignment deadlines and case progress
after GS had left for the day, prompting GS to provide complainant with
written instructions indicating that the "close of the business day"
meant 4:30 pm and not the end of complainant's work day. Accordingly,
the agency found that complainant had not shown that he was suspended
because of his national origin or sex, but because he failed to follow
GS's instructions. The decision concluded that complainant failed to
prove that he was subjected to discrimination as alleged. The agency
also concluded that complainant failed to show that his claim that he
was discriminatorily assigned the most difficult and complex cases to
be without merit.
On appeal, complainant points out that he has served as an Attorney
Advisor since 1997 and that he has consistently achieved successful annual
performance assessments from his supervisors, including the HOD and GS
identified in his complaint. Complainant states that at least three other
decision writing attorney advisors also completed assignments beyond the
deadlines assigned and they were never subjected to the harsh treatment
by GS and HOD that he was. Complainant states that witness statements
refute the statements of GS and HOD regarding the events at issue in the
complaint including witnesses who verify that complainant did not raise
his voice when speaking with GS. Complainant also notes that GS made
a point of speaking with other employees about their weekly assignments
and deadlines, while complainant was required to initiate notice to GS
when he would not be finishing his work by the assigned deadline.
ANALYSIS AND FINDINGS
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").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
With respect to claim (1), (2) and (3), we find the agency's decision
is supported by the record and we find that, assuming complainant
established a prima facie case of national origin, sex or reprisal
discrimination, that GS and HOD provided legitimate, non-discriminatory
reasons for their actions. We find that complainant has not shown by a
preponderance of the evidence that he was singled out for harsh treatment
and discipline because of his national origin or sex. We observe that
the confrontations and instruments of discipline closely followed or
coincided with complainant's EEO activity, but as the agency noted,
complainant was instructed to contact GS when he was unable to meet
established deadlines and complainant does not deny that he was unable
on various occasions, to meet those deadlines. We find nothing in the
record to indicate that the confrontations complainant experienced with
GS or HOD were in any way related to complainant's national origin or sex,
or in reprisal for complainant's EEO activity.
It appears that although the agency dismissed claim (4) for failure to
state a claim, the agency also, as complainant recognizes, addressed
the claim on the merits and found no discrimination. The Commission,
considering claim (4) together with the remainder of the complaint, finds
that complainant has not shown that any allegedly harassing incident,
including work assignments, was motivated by discrimination.
We AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 8, 2009
__________________
Date
2
0120072373
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120072373