01975743
01-15-1999
Christopher S. Reyes, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Christopher S. Reyes v. Social Security Administration
01975743
January 15, 1999
Christopher S. Reyes, )
Appellant, )
)
v. ) Appeal No. 01975743
) Agency No. SSA-204-95
Kenneth S. Apfel, ) Hearing No. 340-96-3519X
Commissioner, )
Social Security Administration, )
Agency. )
___________________________________)
DECISION
On July 16, 1997, Christopher S. Reyes (appellant) timely appealed the
final decision of the Social Security Administration (agency), dated
June 26, 1997, which concluded he had not been discriminated against
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. In his complaint, appellant alleged that
agency officials had discriminated against him based on his national
origin (Hispanic), sex (male), and reprisal for engaging in prior EEO
activity, when he was terminated from his probationary position as
a Service Representative Trainee (SRT)/Contact Representative, GS-6,
effective January 26, 1995. This appeal is accepted in accordance with
the provisions of EEOC Order No. 960.001.
The record establishes that appellant was hired by the agency as a
Contact Representative on April 3, 1994, at the West Covina, California
office subject to a one-year probationary training period. The West
Covina Branch Manager (Hispanic female) had personally recruited appellant
to work for the agency when he was a college student. When he applied
to the agency, he completed a standard SF-171 application form, on which
it was later learned that he failed to list approximately twenty-one
previous employers.
Appellant worked in the office for about three months before he began his
formal training. He was, however, provided two mentors (Japanese/Black
female and Hawaiian/Caucasian/Chinese/Black female). In his first
quarterly progress report, issued in July 1994, appellant was rated
as satisfactory on the few duties he had performed up to that date.
However, around the same time, his supervisor (Black female) brought
to his attention some problems he had with timeliness and the fact
that it had been noticed that he had difficulty staying awake during
his orientation sessions because of a second, part-time job he held.
Appellant attended formal training from July 25, 1994 to October 14, 1994.
In his second quarterly review, covering this training period, appellant
was rated as satisfactory although it was noted that, "It appeared from
your behavior in class that we did not always have your full attention.
You need to put more effort not into just doing the job, but doing the
job well."
Upon his return from training in October 1994, appellant had the daily
assistance of both his mentors. On December 19, 1994, appellant's
supervisor conducted a desk audit in order to rate his work on each of the
written generic job tasks in his performance plan. Based on this review,
she prepared a third quarterly progress review in which she informed
appellant that she would be recommending his termination based on his
inability to demonstrate acceptable work performance. Specifically, she
stated appellant had significant problems meeting deadlines and getting
his work done quickly and efficiently. In addition, she found that he was
very disorganized, despite being instructed on how to organize his work.
She further said that he was not responsive to the assistance and training
offered him by his mentors.
In the meantime, the Branch Manager learned that an FBI background check
on appellant had revealed that appellant had a record of two arrests
for smuggling steroids over the U.S./Mexican border. When the Branch
Manager questioned appellant, he said he was never arrested, but only
issued a citation with a fine which his father paid. He offered to
produce his father's canceled check as proof. However, he never did.
At the same time, she informed appellant that they had also learned
that he had failed to list many of his previous employers on his SF-121.
She asked him to submit an amended application, which he also never did.
Effective January 26, 1995, appellant was terminated for failure to
demonstrate effective performance and failure to submit the amended
SF-171.
On January 30, 1995, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against him as
referenced above.<1> The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On May 22, 1997, following a hearing at which five witnesses testified,
the AJ issued a decision concluding that no discrimination had occurred
in this matter. In that decision, the AJ found that appellant failed to
produce sufficient evidence to prove that the agency discriminated against
him on any discriminatory basis or unlawfully retaliated against him.
In reaching this finding, the AJ rejected the comparatives cited by
appellant because they were either not on probation or had different job
responsibilities because they were not SRT/Contact Representatives. Based
on this conclusion, the AJ found that appellant failed to show that he
was treated more harshly than similarly situated employees outside his
protected groups. With regard to appellant's retaliation claim, the
AJ also found no prima facie case because she found that the evidence
established that agency management proposed appellant's termination at
least eleven days before appellant's first contact with an EEO counselor.
On June 26, 1997, the agency adopted the findings and conclusions of
the AJ and issued a final decision finding no discrimination. It is
from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the case using the appropriate regulations, policies
and laws. Based on the evidence of record, the Commission discerns
no basis to disturb the AJ's finding of no discrimination. Nothing
proffered by appellant on appeal differs significantly from the
arguments raised before, and given full consideration by, the AJ.
Although appellant has argued on appeal that he did establish a prima
facie case of discrimination and/or retaliation, the Commission finds
that even if that were true, any initial inference of discrimination was
successfully rebutted by the agency with its articulation of legitimate,
nondiscriminatory reasons for the actions taken. After weighing the
evidence of record, the Commission concludes that appellant failed to
meet his burden of proving that the reasons given by the agency for its
actions were untrue or were a pretext for discrimination or retaliation.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision which adopted the AJ's
finding of no national origin, sex or reprisal discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Jan 15, 1999
__________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 Appellant's retaliation claim was based on the fact that he contacted
an EEO counselor on December 12, 1994, complaining of "harassment" when
he was given a counseling memo for taking too much time with a client.
The next day, he withdrew his request for counseling. However, on
December 15, 1994, the EEO manager spoke with the Branch Manager about
appellant's perceptions that he was being treated unfairly.