0120062671
09-26-2007
_________________, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
_________________,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200626711
Hearing No. 160-A4-0166X
Agency No. 020412SSA
DECISION
On March 21, 2006, complainant filed an appeal from the agency's February
9, 2006, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 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 order.
At all relevant times, complainant worked as a Legal Assistant, GS-986-6,
in the agency's Office of Hearings and Appeals, in Buffalo, New York.
On July 23, 2002, complainant filed an EEO complaint alleging that he was
discriminated against and harassed on the bases of sex (male), disability
(depression, obsessive disorder and sleep apnea), and in reprisal for
prior protected EEO activity [under an EEO statute that was unspecified
in the record] when:
(1) he was suspended for 14 days effective April 26, 2002;
(2) he was placed on leave restriction on May 16, 2002;
(3) he was subjected to sexual harassment when his co-workers called
him names such as "testicle man" and "sphincter boy" on two occasions
in late 2001 and early 2002. Additionally, complainant stated that he
was referred to as "wonder boy" (as in, "I wonder where the boy is"),
and that when another male entered the work area, they would imply that
complainant was not a real man by stating that it is "nice to have a
real man around."
(4) the agency failed to provide reasonable accommodation by not
allowing him to arrive at work one hour later.
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). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned
to the case granted the agency's May 10, 2005 motion for a decision
without a hearing and issued a decision on October 5, 2005 in favor of
the agency.
The AJ initially found that complainant was not an individual with a
disability pursuant to the Rehabilitation Act, and as such, was not
entitled to reasonable accommodation. As to issues (1) and (2), the AJ
found that the agency had legitimate, nondiscriminatory reasons for its
actions, namely, complainant's time and attendance record and his history
of conduct problems, justified the actions and discipline levied against
him. The AJ found that complainant presented no evidence of pretext.
Addressing harassment, the AJ found that complainant failed to establish a
prima facie case of for the following reasons: a) the actions in question
were not based on his membership in the protected classes involved (i.e.,
sex, prior EEO activity, and/or disability); b) the actions in question
were not severe or pervasive (in that there are insufficient incidents
to materially alter or affect the terms and conditions of employment); c)
there is no showing that the activity or conduct amounted to harassment;
d) there is no probative showing that the alleged harassment affected
complainant's work or performance; and e) there is no basis for imputing
liability to the employer. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that he was
subjected to discrimination as alleged. Neither complainant, nor the
agency, raises new argument on appeal.
As this is an appeal from a final order 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). After a
careful review of the record, the Commission finds that the AJ's decision
without a hearing was appropriate, as no genuine issue of material fact is
in dispute.2 See Petty v. Department of Defense, EEOC Appeal No. 01A24206
(July 11, 2003). Therefore, we AFFIRM the agency's final order.
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
September 26, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120062671
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036