0120102674
12-15-2011
Marlon Mark, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Marlon Mark,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102674
Hearing No. 530-2007-00322
Agency Nos. NY-09-0053-SSA; NY-06-2145-SSA
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s May 11, 2010 final order concerning his
consolidated equal employment opportunity (EEO) complaints 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 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 a Teleservice Representative at the Agency’s Teleservice Center in
Jamaica, New York. On June 20, 2006, Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the bases of sex,
disability, and in reprisal for prior protected EEO activity when:
1. Management suspended him from duty and pay status from June 5 through
June 16, 2006.
On December 12, 2008, Complainant filed a second EEO complaint alleging
that the Agency discriminated against him on the bases of disability
and in reprisal for prior protected EEO activity when:
2. Management gave Complainant a reprimand effective October 21, 2008 for
unacceptable conduct while handling calls. The reprimand was specifically
for unnecessarily leaving a caller on hold.
At the conclusion of the investigation, the Agency provided Complainant
with copies of the reports of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. On October 28, 2009, the AJ consolidated
the two complaints. The AJ held a hearing on March 3, 2010, and issued
a decision on March 19, 2010.
In her decision, the AJ determined that Complainant failed to establish a
prima facie case of discrimination on the alleged bases. Nonetheless, the
AJ assumed arguendo that Complainant had established a prima facie case
of discrimination and found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim
(1), Complainant received the suspension based on a culmination of seven
incidents. First, on November 7, 2005, Complainant was away from his desk
for an extended period of time and left his computer unlocked while he
was away. Second, on November 7, 2005, Complainant’s supervisor (S1)
provided a detailed account of her observation of Complainant writing
a letter to a friend while he had a caller on hold for 17 minutes.
Complainant denied writing this letter; however, the AJ found S1 was
more credible due to her detailed account and because she wrote a
contemporaneous memorandum detailing the incident.
Third, a supervisor (S2) testified that on November 30, 2005, she had to
ask Complainant to log in after his break ended. Complainant argued that
he was on break at that time. The AJ concluded that even if an error
was made in regard to this incident, there is no evidence to suggest
that it was done with discriminatory or retaliatory animus. Moreover,
S2 testified that Complainant had to be reminded to log in after returning
from his break on a frequent basis, not just on this occasion.
The fourth incident occurred on December 16, 2005, when Complainant
was caught calling his mother while placing a customer on hold to make
the personal call. Fifth, the assistant manager (AM) provided detailed
testimony that, on January 24, 2006, she observed Complainant reading a
religious pamphlet while he had a caller on hold. When questioned by
AM as to why he had a caller on hold while reading personal material,
he stated “You want to read it!” and threw the article against
the wall of his cubicle. AM advised Complainant to assist the caller.
The AJ found AM’s testimony was more credible due to the more detailed
and certain accounting of the incident. Complainant, on the other
hand, recounted the incident vaguely and said what he was reading was
“basically” work-related. In addition, AM provided a memorandum of
the incident, which was written contemporaneously.
The sixth incident occurred on February 21, 2006, when S2 observed
Complainant on his cell phone after he told a customer that he was
going to review her record. Complainant did not have a very specific
recollection of the incident, but believed he may have been calling
his doctor. S2 testified that she was doing a service observation and
listened to Complainant tell the customer that he had to put the customer
on hold so he could review the record. S2 then observed Complainant make
a phone call on his cell phone. S2 added that she knew he was making a
personal call because she walked around to see what he was doing.
Lastly, on March 27, 2006, S2 observed Complainant playing a scratch-off
game rather than signing on to take calls. In issuing the suspension,
management took into account the fact that Complainant had a history of
discipline for similar infractions.
Regarding claim (2), Complainant’s supervisor (S3) testified that on
October 20, 2008, she saw that Complainant had left a customer on hold
for approximately 11 minutes. When she went to see what was going on,
she saw Complainant sitting at his desk with his eyes closed. S3 stated
that she stood at Complainant's cubicle for approximately 10 seconds and
he failed to acknowledge her presence. She audibly cleared her throat
and he became alerted to the fact that she was standing at his cubicle.
She asked if he was sleeping and he said that he was just closing his
eyes. She asked if he had a caller on hold and he stated that he had
only had his caller on hold for about 3 or 4 minutes. S3 informed him
that it had actually been 12 minutes and he said ok, and returned to
the call. Complainant did not deny that he had his eyes closed for a
period of time and testified that he was not feeling well on that day.
Complainant did not inform S3 that he was not feeling well, however.
Based on Complainant’s prior conduct, management and human resources
decided to issue Complainant a reprimand.
The AJ determined that Complainant had not presented any persuasive
evidence establishing that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant had not been
discriminated or retaliated against as alleged. The Agency subsequently
issued a final order adopting the AJ’s decision. Complainant submitted
no contentions or arguments in support of his appeal.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Universal Camera Corp. v. Nat'l Labor Relations Bd.,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claims 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).
He must generally establish a prima facie case by demonstrating that
she 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 in this case, however, since the Agency has articulated
legitimate and 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. 23, 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, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon a review of the record, the Commission finds that the AJ's finding
of no discrimination and reprisal is supported by substantial evidence.
The Commission concurs with the AJ’s finding that the Agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
as to claim (1), Complainant was suspended after he was observed on
seven occasions between November 7, 2005 and March 27, 2006, engaging
in misconduct as discussed above. Regarding claim (2), S3 testified
that Complainant was issued the reprimand after she observed Complainant
leave a caller on hold for 11 minutes while he sat at his cubicle with
his eyes closed. Hr’g Tr., at 354-55. Further, she testified that
when she approached his cubicle, he did not acknowledge she was there
until she cleared her throat. Id. at 355. S3 added that Complainant
did not inform her that he was not feeling well or give any explanation
as to why he had the caller on hold. Id. After discussions with human
resources and AM and based on Complainant’s previous misconduct,
management decided to issue Complainant a reprimand. Id. at 357
The Commission finds that the AJ's determination that Complainant failed
to establish pretext is supported by substantial evidence in the record.
The record and facts gleaned at the hearing fail to prove any evidence
purporting to show the Agency’s actions were pretext for discriminatory
or retaliatory animus. Accordingly, the Commission discerns no basis
to disturb the AJ's decision.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final Agency order because
the Administrative Judge’s ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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 (Nov. 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
December 15, 2011
Date
2
0120102674
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120102674