01973763
06-10-1999
Elbert Brooks, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.
Elbert Brooks v. Social Security Administration
01973763
June 10, 1999
Elbert Brooks, )
Appellant, )
) Appeal No. 01973763
v. ) Agency No. 96-0102-SSA
) Hearing No. 380-96-8185X
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration,)
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision ("FAD")
concerning his equal employment opportunity ("EEO") complaint of unlawful
employment discrimination on the bases of race (Black) and reprisal
(prior EEO activity) in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges he was
discriminated against when: (1) he was asked by his supervisor ("AS")
to explain his sick leave request on or about October 16, 1995; and (2)
he was suspended for two days, November 15 and 16, 1995. This appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, a GS-08 Contact Representative at
the agency's Seattle, Washington District Office, filed a formal EEO
complaint with the agency on January 17, 1996, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, appellant requested a hearing before an Equal
Employment Opportunity Commission ("EEOC") Administrative Judge ("AJ").
Following a hearing, the AJ issued a Recommended Decision ("RD") finding
no discrimination.
Initially, the AJ found that the suspension issue should be dismissed
because the evidence indicated that appellant filed a grievance prior
to filing his formal EEO compliant. See EEOC Regulation 29 C.F.R. �
1614.107(d). The AJ then concluded that appellant failed to establish
a prima facie case of race discrimination regarding the sick leave issue
because he failed to demonstrate that similarly situated employees not in
his protected class were treated differently under similar circumstances.
However, the AJ held that appellant established a prima facie case of
reprisal discrimination because AS was aware of appellant's prior EEO
activity and questioned his sick leave in time frame close enough to draw
an inference of discrimination. The AJ next concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions,
namely, that AS did not require appellant to bring certification for
his sick leave, but inquired as to why it took nine hours of sick leave
to receive a flu shot. Finally, the AJ concluded that appellant did not
establish that more likely than not, the agency's articulated reasons were
a pretext to mask unlawful discrimination or retaliation. The agency's
FAD adopted the AJ's RD. Appellant makes no new contentions on appeal,
and the agency requests that we affirm the FAD.
After a careful review of the record in its entirety, including evidence
not specifically addressed in this decision, the Commission finds that
the AJ's RD sets forth the relevant facts and properly analyzes the
appropriate regulations, policies and laws. We agree with the AJ and find
that appellant failed to present sufficient credible evidence establishing
discrimination or retaliation. Therefore, the Commission discerns no
basis upon which to overturn the AJ's finding of no discrimination in
this matter. 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 race or reprisal discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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. 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 (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:
June 10, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations