01971681
06-09-1999
Elbert V. Brooks, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Elbert V. Brooks v. Social Security Administration
01971681
June 9, 1999
Elbert V. Brooks, )
Appellant, ) Appeal No. 01971681
v. ) Agency No. 95-0466-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning his complaint of discrimination in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. See EEOC Order No. 960.001. In his complaint, appellant alleged
that he was retaliated against based on his prior EEO activity when:
(a) a Report of Incident was placed in his SF 7-B Extension File on May
11, 1995; and (b) he was assigned as primary backup to another Service
Representative from May 1, to July 5, 1995.
On May 1, 1995, appellant, a Service Representative, GS-8, was assigned
as primary backup to another representative. Appellant contended that
this representative was very slow and required his backup to be at his
desk all the time.
On May 11, 1995, appellant was working the front desk when he was asked
to take a call from an employee in another office, who requested that
appellant accept certain documents by fax. The other employee later filed
a written complaint against appellant alleging that he had been rude and
uncooperative, and had given poor public service. Appellant contended
that he should not have been asked to take a call while working the front
desk, and that other employee's request circumvented written procedures
which therefore constituted a request that he do something illegal.
The Acting District Manager nevertheless issued appellant a Report of
Incident for engaging in inappropriate behavior.
Appellant sought EEO counseling on May 18, 1995, and filed a formal EEO
complaint on July 5, 1995, which alleged that his assignment as primary
backup and the issuance of the Report of Incident constituted retaliation
for his prior EEO activities. The agency accepted and investigated the
complaint. In his affidavit provided to the EEO Investigator, appellant
contended that the District Director showed favoritism toward one of
appellant's female coworkers "which is sexual harassment." The EEO
Investigator included this contention in the Report of Investigation.
The coworker denied having a personal relationship with the District
Director and stated that he had never requested favors of a sexual
nature from her. The District Director also denied having any personal
relationship with the coworker.
In a letter to appellant's attorney dated February 20, 1996, the agency
noted that appellant "stated for the first time in his affidavit that
he was subjected to sexual harassment" and that this "additional basis
... will not be entertained [because] it was not part of the previously
accepted complaint." The agency also cited cases where the Commission and
the courts had found that isolated instances of preferential treatment
based on consensual romantic relationships, spousal ties or friendship
may be unfair, but do not constitute discrimination in violation of Title
VII because both males and females are equally disadvantaged for reasons
other than their gender. See, e.g., EEOC Policy Guidance on Employer
Liability under Title VII (1990); DeCintio v. Westchester County Medical
Center, 807 F.2d 304 (2d Cir. 1986), cert. Denied, 108 S.Ct. 89 (1987);
Miller v. Aluminum Co. Of America, 679 F. Supp. 495, aff'd mem., 856 F.2d
184 (3rd Cir. 1988). The agency advised the attorney that the alleged
favoritism of the coworker, "as stated by [appellant] in his affidavit,
would not constitute sexual harassment [and, therefore, the agency found
that he] failed to establish a prima facie case of discrimination based
on sexual harassment."
After receipt of the Report of Investigation, appellant failed to request
a hearing, and the agency then issued its FAD, dated November 19, 1996,
finding no discrimination. In the FAD, the agency applied the analytical
framework set forth in Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd 545 F.2d 222 (1st
Cir. 1976), and found that appellant failed to establish that the agency's
articulated reasons for its actions were a pretext to mask retaliation.
The agency found that appellant's contentions regarding the alleged
impropriety or illegality of other employee's request concerning the fax
did not justify appellant's rude response, and noted that the applicable
supervisor had issued Reports of Incident to other employees for similar
behavior. As for appellant's assignment to act as primary backup for
another employee, the agency noted that after appellant discussed the
assignment with his supervisor, the schedule was changed so that his
other coworkers were assigned as backup to this employee more frequently
than appellant. The agency was not persuaded that appellant established
that, during the two-month period specified in his complaint, appellant
was subjected to retaliation by being assigned as backup to the employee.
On appeal, appellant complains that in December 1996, he: (1) was denied
administrative leave time to work on other specified EEO complaints;
(2) was required to seek telephonic EEO counseling; he received two
death threats; and (3) was required to have a nurse practitioner sign
certain documents.
The Commission notes that all of appellant's comments on appeal concern
events which occurred after issuance of the FAD in question. Appellant is
advised to raise the denial of administrative leave time in his filings
made in connection with those other complaints; in addition, appellant may
wish to bring this matter to the attention of the agency's EEO Director.
While appellant is advised that the Commission permits agencies to offer
telephonic EEO counseling (see Henry v. United States Postal Service,
EEOC Request No. 05950599 (September 21, 1995)), he may raise his
objections to telephonic counseling in his filings made in connection
with that complaint. Should appellant wish to file an EEO complaint
concerning his supervisor's failure to report the death threats to the
Federal Bureau of Investigation, or concerning the requirement that a
nurse practitioner sign certain documents, he is advised to seek EEO
counseling.
With respect to appellant's instant EEO complaint, the Commission
notes that appellant was entitled to amend his complaint at any time,
prior to issuance of the FAD, to add or delete bases without changing
the identity of the claim. See Sanchez v. Standard Brands, Inc., 431
F.2d 455 (5th Cir. 1970); Dragos v. United States Postal Service, EEOC
Request No. 05940563 (January 19, 1995). The Commission finds that
appellant's affidavit raised the allegation of discrimination based
on sex, although appellant erroneously characterized his allegation as
an allegation of sexual harassment. Accordingly, the addition of the
basis of sex discrimination did not change the identity of his claim.
In any event, the Commission finds that the agency erred in disposing of
appellant's allegation (whether on the basis that the alleged favoritism
did not constitute sexual harassment, or on the basis that appellant
failed to establish a prima facie case of discrimination) in a letter.
In order to dispose of any allegation, the agency must do so in a final
agency decision which provides appropriate notification of appeal rights.
The Commission notes that appellant did not raise the agency's disposal
of his allegation of sex discrimination in his instant appeal. Because
the EEO Investigator included appellant's claim in the investigation,
the Commission finds that the record on appeal is adequate to address
the issue. The Commission finds that the evidence does not establish that
the agency's articulated reasons for the challenged actions (the issuance
of the Report of Incident and appellant's assignment as primary backup
to another Service Representative) were a pretext to mask discrimination
based on either sex or reprisal. Accordingly, after a careful review
of the entire record, it is the decision of the Commission to AFFIRM
the FAD as modified in this decision.
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. �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 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. 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 9, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations