0120073808
04-16-2010
Paul M. Brown, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Paul M. Brown,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120073808
Agency Nos. HQ-01-0068-SSA1; HQ-01-0069-SSA2; HQ-02-0085-SSA3
DECISION
On September 5, 2007, complainant filed an appeal from the agency's August
1, 2007 final decision 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 the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Systems Accountant at the agency's Headquarters facility in Woodlawn,
Maryland.
Complainant filed three EEO complaints alleging that he was discriminated
against on the bases of race (White), national origin (Anglo-Saxon),
age (over 40), and reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964. Previously, each of complainant's
complaints was dismissed by the agency on procedural grounds.
In Paul M. Brown v. Social Security Administration, EEOC Appeal
No. 01A15277 (January 28, 2003) request for reconsideration denied,
Request No. 05A30534 (September 11, 2003), the Commission affirmed the
agency's dismissal of 22 of 23 claims identified by complainant in agency
case number 01-0400-SSA. The Commission remanded one claim to the agency
for further processing. The remanded claim alleged as follows.
1. On February 28, 2001, complainant was notified that his request
for administrative leave or court leave for the period of March 1,
March 2 and March 5, 2001, was denied.
In Paul M. Brown v. Social Security Administration, EEOC Appeal
No. 01A15254 (January 28, 2003) request for reconsideration denied,
Request No. 05A30533 (September 11, 2003), the Commission affirmed the
agency's dismissal of 22 of 23 claims identified by complainant in agency
case number 01-0433-SSA. The Commission remanded one claim to the agency
for further processing. The remanded claim alleged as follows.
2. On March 26, 2001, complainant was notified that his request
for administrative leave or court leave for a period of two and one-half
hours on March 27, 2001 was denied.
In Paul M. Brown v. Social Security Administration, EEOC Appeal
No. 01A22933 (January 28, 2003) request for reconsideration denied,
Request No. 05A30535 (September 11, 2003), the Commission affirmed the
agency's dismissal of 22 of 23 claims identified by complainant in agency
case number 02-0189-SSA. The Commission remanded one claim to the agency
for further processing. The remanded claim alleged as follows.
3. On November 7, 2001, complainant was notified that his request
for administrative leave or court leave for a period of approximately
four hours on November 8, 2001 was denied.
By letter dated February 24, 2003, the agency consolidated complainant's
three complaints for investigation of the three remanded claims.
At the conclusion of the investigations into his respective complaints,
complainant requested hearings before an EEOC Administrative Judge (AJ).
Subsequently, in Paul M. Brown v. Social Security Administration, EEOC
Appeal No. 0120055582, 0120060210 (March 29, 2007), the Commission found
that complainant's consolidated complaints were properly dismissed from
the hearing process when complainant failed to request reinstatement
of his hearing requests after complainant and the agency had agreed to
dismiss his hearing request without prejudice, pending the disposition
of three civil actions then pending.4 The Commission ordered the agency
to issue final decisions in accordance with 29 C.F.R. � 1614.110(b),
on a number of complainant's complaints, including agency case numbers,
01-0433-SSA, 01-400-SSA, and 02-0189-SSA. The agency issued its final
decision on August 1, 2007.
In its final decision, the agency found that complainant had requested
administrative leave or court leave on the occasions specified, but that
complainant had not shown that he had been asked to testify or produce
official records on behalf of the United States or District of Columbia,
or to testify in his official capacity or produce official records
on behalf of a party other than the United States or the District
of Columbia. Instead, the agency found the evidence indicated that
complainant requested the paid leave in order to participate in court
proceedings as a plaintiff on his own behalf and not in any official
capacity. Accordingly, the agency found that complainant's request had
been properly denied by agency policy that requires employees to take
annual leave or leave without pay in such instances.
The agency found that agency officials had articulated legitimate,
non-discriminatory reasons for its actions and that complainant had not
shown those reasons to be a pretext for discrimination on any basis.
On appeal, complainant argues, among other things, that pursuant to 5
U.S.C. � 6322(b), he is entitled to attend the proceedings in his civil
actions5 because the United States government summoned him to appear in
an official capacity.
On appeal, the agency argues that complainant's attendance at mediation
was not mandatory and complainant was not conducting official duty when
participating in his deposition or at the trial of his civil action.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case we find the record supports the agency's final
decision. We note that the Commission has previously considered
requests for administrative leave similar to the requests made by
complainant in the instant complaints. See, Dubois v. Social Security
Administration, EEOC Appeal No. 01A30746 (January 30, 2003) (an agency
may rely on its internal policy with respect to leave requests to pursue
actions in federal court, Tucker v. United States Postal Service, EEOC
Request No. 05900775 (August 23, 1990); see Axel v. Social Security
Administration, EEOC Appeal No. 01A00045 (February 8, 2001). We find the
agency followed the requirements of its Personnel Manual for Supervisors
in deciding to deny complainant administrative leave. We concur with
the agency that complainant has not shown that the agency's proffered
reasoning is a pretext for discrimination.
We therefore AFFIRM the agency's final decision, finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 16, 2010
__________________
Date
1 Previously agency case number 01-0400-SSA.
2 Previously agency case number 01-0433-SSA.
3 Previously agency case number 02-0189-SSA.
4 Stanley Axel, et al. v. Social Security Administration, Civil
Action Number WMN-97-1614; Paul M. Brown, et al. v. Social Security
Administration, Civil Action Number S-99-3798; and Paul M. Brown, et
al. v. Social Security Administration, Civil Action Number S-99-3798.
5 Complainant asked for administrative leave or court leave to attend
his own deposition and to attend mediation in connection with the civil
actions he had filed in federal court.
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0120073808
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073808