01993145
12-28-1999
Paul D. Schraft, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Paul D. Schraft, )
Complainant, )
) Appeal No. 01993145
v. )
) Agency No. 98-0404-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (�FAD�) concerning his complaint of employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.<1> In his complaint, complainant
alleged that he was discriminated against on the basis of age (58) when
the agency terminated his employment on July 2, 1997. The Commission
accepts this appeal in accordance with the provisions of EEOC Order
No. 960.001. For the following reasons, we AFFIRM the agency's decision.
The record reveals that during the relevant time, complainant was employed
as a probationary Service Representative, GS-05, at the agency's Akron
West District Office. Complainant alleged that his termination resulted
because management felt his age precluded him from serving productive
years as a journeyman Service Representative. Complainant stated that
after he was hired for the position, there was a change in management
whereby a younger group of officials took over and decided not to retain
him no matter how he performed.
Complainant's second line supervisor stated that she terminated
complainant because of his inability to perform the required functions
of the position. In addition, complainant's immediate supervisor stated
that while it was understood that complainant was still learning the
position, he failed to demonstrate the ability to perform even the
routine, uncomplicated functions of his job. Two of complainant's
co-workers stated that they believed complainant's work was fine given
his lack of experience and training. Both individuals expressed that
they felt complainant did not receive the training necessary to meet
management's expectations. Neither co-worker stated that age was a
factor in management's treatment of complainant.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on March 5, 1998.
The agency accepted the complaint for processing, and at the conclusion
of the investigation, complainant was granted thirty days to request
a hearing before an EEOC Administrative Judge or an immediate FAD.
Complainant failed to request a hearing within the thirty day time period.
Thereafter, the agency issued a final decision finding no discrimination.
The FAD concluded that complainant established prima facie case of age
discrimination because he met the Act's age requirement, was terminated,
and replaced by a younger individual. The FAD then concluded that
the agency articulated legitimate, nondiscriminatory reasons for the
termination, namely, that complainant failed to demonstrate that he could
perform the required functions of the position. Finally the FAD found
that complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm the FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979) (holding that in an age discrimination case,
complainant has the ultimate burden of demonstrating that age was a
determinative factor in the adverse employment action), the Commission
finds that complainant failed to present sufficient credible evidence
demonstrating that age was a determinative factor in management's decision
to terminate him. While complainant presents evidence that he did not
receive sufficient training to perform all the functions of his position,
he failed to show that management's failure to provide such training
was as a result of his age. Unless complainant proves that he was
discriminated against because of his protected basis, he cannot succeed
in his EEO claim. See Jackson v. City of Kileen, 654 F.2d 1181, 1186
(5th Cir. 1981) (explaining that employment discrimination law is not a
shield against unfair treatment at the workplace). Other than his bare
assertion that management terminated him because of his age, complainant
submits no evidence to substantiate his claim of age discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
December 28, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.