0120111099
02-15-2012
Jeff Murphree, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jeff Murphree,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120111099
Hearing Nos. 420200900156X, 420201000071X
Agency Nos. ATL080398SSA, ATL090351SSA
DECISION
On December 6, 2010, Complainant filed an appeal from the Agency’s
November 10, 2010, 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. The Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a). 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 a District Manager at the Agency’s facility in Gadsen, Alabama.
On June 23, 2008 and April 14, 2009, Complainant filed an EEO complaints
alleging that the Agency subjected him to a hostile work environment and
discriminated against him on the bases of race (Caucasian) and reprisal
for prior protected EEO when:
1. He was ridiculed, humiliated, and threatened with disciplinary action.
Complainant further alleges that he was overlooked for promotions and
advancement opportunities;
2. He was suspended for one day effective June 12, 2008;
3. In May 2008, his award was downgraded from a Recognition of
Contribution award to an Exemplary Contribution or Service award;
4. In May 2008, he was not given the opportunity to compete for the GS-14
Deputy Area Director position that was filled without a solicitation of
interest announcement; and
5. On February 19, 2009, he was notified that his local hard drive was
flagged for an intense integrity review because of activity deemed to
be questionable.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. Over the complainant's objections, the AJ
assigned to the case granted the Agency’s November 30, 2009, motion for
a decision without a hearing and issued a decision without a hearing on
October 6, 2010. 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. The instant appeal followed.
Claim 1
According to the AJ, the evidence of record established the following
undisputed facts. In July 2007, Complainant’s first line supervisor,
the Agency’s Area Director learned that the Agency was authorized to
select a permanent Deputy Area Director (DAD). The record indicates that
one of Complainant’s colleagues had been serving in this position as
the Acting DAD as part of the Agency’s Management Development Program.
The record further indicates that Complainant’s supervisor verbally
informed her subordinates, including Complainant of the opportunity to
submit statements of interest for the DAD position.
Both Complainant and the selectee submitted a one page statement of
interest for the position. The Agency’s office of Human Resources
created a list of four candidates including Complainant, for consideration
and submitted it to the Agency’s Regional Commissioner and Deputy
Regional Commissioner for review. The Agency’s Regional Commissioner
eventually passed the list to Complainant’s supervisor, the Area
Director, and asked her to let him know who she wanted to select to fill
be the DAD. Complainant’s supervisor ultimately chose the selectee to
fill the position based on her personal familiarity with his background,
and his strengths as a leader. Complainant’s supervisor also indicated
that she chose the selectee for the position based on the length of time
he had been in management, his demonstrated ability to handle difficult
labor relations issues and his very strong interpersonal skills.
The record also indicates that Complainant’s supervisor found the
selectee to be a better public speaker than Complainant and noted that
public speaking is a very important part of the DAD position.
The Complainant was advised on December 7, 2007 that he was not selected
for the position. Complainant did not initiate contact with an EEO
Counselor until March 28, 2008. The Agency dismissed Complainant’s
claim with respect to not being selected for the position of Deputy Area
Director as untimely in accordance with EEOC Regulation 29 C.F.R. §�
�1614.107(a)(2).
Claim 2
Complainant further alleges that his authority as a manager was undermined
when the Agency refused to act on his recommendation for disciplinary
action against an employee who wrongly denied a social security claim.
In October 2007, the record indicates that Complainant was instructed
to conduct a fact-finding interview of an employee who was suspected
of improperly denying a social security claim. On January 17, 2008,
Complainant interviewed the employee regarding the allegation. The record
provides that because Complainant indicated that he was uncomfortable
interviewing the employee, Complainant requested that Agency officials,
the District Manager and the Operation Supervisor, observe the interview
through a large window. According to the record, the Agency officials
witnessing the interview did not observe Complainant engaging in any
inappropriate behavior.
Thereafter, on January 23, 2008, the employee Complainant had interviewed
verbally complained to the District Manager and the Operation Supervisor
that she had been subjected to ongoing sexual harassment by Complainant
over the course of five years. On February 1, 2008, the employee submitted
a written statement regarding her allegations of sexual harassment.
Therein, she stated that she had been a victim of sexual harassment by
Complainant beginning in May 2002 up to and including the investigative
interview on January 17, 2008. The employee described unwelcome sexual
advances by Complainant as well as ongoing sexually explicit and sexually
oriented comments, jokes, stories and activities by her co-workers.
Complainant’s supervisor was made aware of the employee’s allegations,
and discussed the matter with the Deputy Regional Commissioner and the
Regional Commissioner.
As a result of the employee’s allegations, the Agency’s Office of
Regional Commissioner assigned a team to investigate. The investigation
did not find that Complainant had sexually harassed the employee.
However, the investigation disclosed that Complainant allowed certain
inappropriate behavior to occur by not immediately addressing issues
that appeared to be pervasive throughout the Alabama District Office, of
which Complainant had supervisory authority. Complainant admitted during
the course of the investigative interview, that employees had engaged in
inappropriate conversations, and shared off-color jokes and comments with
Complainant on occasion. Complainant advised the investigators that he
was also aware of a standing joke around the office about a “blow-job”
contest but admitted that he never specifically inquired about it.
Following the investigation, the investigatory team recommended
sensitivity, diversity and sexual harassment training as well as any
additional corrective actions deemed necessary for the management staff.
As a result of these findings, Complainant’s supervisor recommended that
Complainant be suspended for two days for failing to adhere and enforce
the Agency’s policy on the Prevention and Elimination of Harassment
in the Workplace. The investigative team also recommended a three day
suspension as well as a written reprimand for the co-workers involved
in making the inappropriate comments and jokes.
On May 1, 2008, Complainant provided a written statement and oral
presentation in response to the Agency’s proposal to suspend him
for two days. As a result of Complainant’s response, the suspension
was reduced to one day effective June 12, 2008. Complainant further
alleges that his authority as a manager was undermined because the
Agency postponed the proposed disciplinary action against the employee
for wrongly denying a social security claim and failed to take any
action against her for filing false allegations of sexual harassment
against Complainant. The record indicates that the Agency believed it
would have inappropriate to discipline the employee for filing false
allegations of sexual harassment because the investigatory team could
not prove that her allegations were false.
Claim 3
The record indicates that in October 2007, Complainant’s supervisor
rated Complainant’s performance for fiscal year 2007, which ended on
September 30, 2007. Complainant received a 5 (Outstanding Contribution)
in the categories of interpersonal skills, participation, demonstration
of leadership, and performance management. Complainant was rated a 3
(Successful Contribution) in the areas of job knowledge, and achievement
of business results. Complainant received an average score of 4.3 for
fiscal year 2007. However, Complainant’s supervisor testified that
she would not have rated Complainant as highly had she been aware of the
climate in the Gadsen field office regarding inappropriate sexual comments
and jokes. As a result, Complainant’s supervisor made the decision on
April 10, 2008 to award Complainant with a $1000.00 Exemplary Contribution
or Service Award instead of a Recognition of Contribution Award. The
record further indicates that Complainant’s supervisor was not aware
that Complainant had filed an EEO complaint until April 22, 2008 when
she received an email from the Agency’s Deputy Regional Commissioner.
Claim 4
According to the record, the individual selected to fill the DAD position
was subsequently chosen to participate in the Agency’s Advanced
Leadership Program. During his absence, the Agency’s Nashville
District Manager was temporarily reassigned to the vacant DAD position
on April 14, 2008. After his participation in the Advanced Leadership
Program, the initial DAD selectee was chosen to be the North Florida Area
Director in December of 2008. Thereafter, the Agency recommended that
the Agency’s Nashville District Manger be permanently reassigned to
the DAD position she currently held in an acting capacity. The record
does not indicate that Agency officials discussed the possibility of
reassigning Complainant to the DAD position. Effective December 21, 2008,
the Agency’s Nashville District Manager was permanently reassigned to
the position of DAD. The Agency indicates that the Nashville District
Manager was chosen to permanently fill the DAD position because of her
familiarity with the Disability Determination Service in operation under
the DAD position as well as her prior management experience.
Claim 5
The record indicates that on February 19, 2009, Complainant was informed
by a subordinate in his office that his hard drive had been flagged for
an intense integrity review. According to Complainant, the computer
generated a flag because he had been working late the night before.
Complainant acknowledged that an integrity review of his computer was
required but that he was uncomfortable with having his subordinate
employee involved. Complainant’s supervisor agreed to handle the
integrity review from her office. According to the record, in order
to ensure the integrity of its process and to detect any fraudulent use
of client data, the Agency instituted a Comprehensive Integrity Review
Process (CIRP). The CIRP is a systematic review process which may
indicate fraudulent activity involving Agency employees or the public.
According to Complainant’s supervisor, once a system is flagged,
a member of Agency management must look at the integrity review
and determine whether or not the system was accessed by employees
for valid work reasons or for personal or unauthorized reasons.
According to Agency policy, it is mandatory that all CIRPs be fully
and completely investigated. Complainant’s supervisor asserts that
when Complainant’s name and personal identification number came up
in a comprehensive integrity review she contacted the Agency’s Center
for Security and Integrity. Complainant contends that he did not hear
anything more regarding the review from his supervisor.
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, at Chapter 9, § VI.B. (November 9, 1999)
(providing that both the Administrative Judge’s determination to issue
a decision without a hearing, and the decision itself, are subject to de
novo review). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate) or
reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and
legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
§ VI.A. (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”).
We must determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, issuing a decision
without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the
instant complaint was suitable for summary judgment. The record is
adequately developed and there are no disputes of material fact.
Hostile Work Environment
To the extent that Complainant alleges that the Agency’s conduct
in failing to select him for the DAD position, failing to act on his
recommendation for discipline of an employee or its failure to reassign
him to the DAD position once the selectee was promoted constituted
discriminatory harassment, the Commission notes that harassment of
an employee that would not occur but for the employee's race, color,
sex, national origin, age, disability, religion or prior EEO activity
is unlawful, if it is sufficiently patterned or pervasive. Wibstad
v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing
McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8,
1994). In determining that a working environment is hostile, factors to
consider are the frequency of the alleged discriminatory conduct, its
severity, whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee's work performance. See Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance
at 6. The Supreme Court has stated that: “Conduct that is not severe
or pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive -
is beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant must
show that: (1) he belongs to a statutorily protected class; (2) he was
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on his statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance at 6.
After a review of the record, the Commission finds that Complainant's
claims do not constitute discriminatory harassment. The Commission
concludes that Complainant did not prove that he was subjected to conduct
sufficiently severe or pervasive to create a hostile work environment and
that he also failed to prove that the Agency's actions were unlawfully
motivated by his protected classes. Even assuming that the alleged
incident would be sufficiently severe or pervasive to constitute a hostile
work environment, there is no evidence that the Agency was motivated by
discriminatory animus. Accordingly, Complainant has not shown that he
was subjected to a discriminatory hostile work environment.
Disparate Treatment/Reprisal
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd ,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she 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). For instance,
to establish a prima facie case of reprisal, Complainant generally must
show that: (1) she engaged in protected EEO activity; (2) the Agency
was aware of the protected activity; (3) subsequently, she was subjected
to adverse treatment by the Agency; and (4) a nexus exists between his
protected activity and the adverse treatment. Whitmire v. Dep't of the
Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). 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, Inc., 530 U.S. 133, 143 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements
to establish a prima facie case of reprisal n any alleged basis we find
further that the Agency articulated legitimate, nondiscriminatory reasons
for its conduct as alleged in this matter and Complainant failed to show
that those reasons are pretext for discrimination. Complainant failed to
establish that the Agency's actions were based on discriminatory animus
toward Complainant’s protected classes. Based on a thorough review
of the record, we find that the AJ’s finding of no discrimination
was proper.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, including those not specifically
addressed herein, it is the decision of the Equal Employment Opportunity
Commission to affirm the Agency’s final order because the Administrative
Judge’s issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
February 15, 2012
__________________
Date
2
0120111099
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111099