01972951
03-12-1999
Phillip F. Tuman, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Phillip F. Tuman v. Social Security Administration
01972951
March 12, 1999
Phillip F. Tuman, )
Appellant, )
) Appeal No. 01972951
v. ) Agency No. 96-00030-SSA
) Hearing No. 210-96-6309X
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
)
DECISION
Appellant filed an appeal from a final agency decision (FAD) concerning
his equal employment opportunity (EEO) complaint of unlawful employment
discrimination on the basis of sex (male), 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 from August 1994 until
August 1995 when: he was denied a transfer to a Claim Representative
(CR) position at the agency's Effingham Illinois Facility. The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED.
Appellant filed a formal EEO complaint with the agency on October
24, 1995, 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.
The AJ concluded that appellant established a prima facie case
of discrimination because a similarly situated employee, not in his
protected class, was allowed to transfer prior to September 1995. The AJ
then concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, the Area Director (AD) testified that
Effingham did not have sufficient capacity under its re-allocated FTE
ceiling to fill a vacant CR position as of August 1994, i.e. even though
there was one vacancy for a CR at Effingham, there was only capacity
for 0.3 of an employee under the total allocated FTE ceiling for that
facility. The AD was also concerned that appellant's return to Effingham
might be disruptive in light of appellant's extramarital affair with one
of his subordinates while he was a supervisor at that facility. Finally,
the AD consistently testified that he had a long standing oral commitment
(since 1987) to transfer the female comparison to Effingham as a CR when
staffing levels permitted, and noted that the comparison was more senior
to appellant.
The AJ found that appellant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ considered
appellant's pretext arguments stated as follows: (1) the agency
used gender stereotypes to deny his transfer request, i.e., appellant
was characterized as a predator because of his affair with a female
subordinate at Effingham during the period 1984-1988; (2) the agency
manipulated staffing levels or patterns at Effingham to avoid transferring
him; and (3) appellant's degree of hardship was not properly considered
compared to the female comparison's transfer request. The AJ found
that appellant's arguments were not supported by the evidence and were
furthermore unpersuasive. The agency's FAD adopted the AJ's RD.
On appeal, appellant contends that the AJ made erroneous conclusions
not supported by the evidence of record; used conflicting rationale
in disallowing testimony and in reaching decisions; did not grasp the
difference in the nature of appellant's requests for reassignment made in
August 1994, and January 1995; and failed to address the agency's failure
to articulate reasons for staffing decisions and the contradictions in
what the agency stated as explanations for their actions.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus toward appellant's sex. We note some credibility
problems in the testimony of the AD, however, we find, based on the
record evidence before us, that appellant has not demonstrated, by a
preponderance of the evidence, that the AD was ultimately motivated by a
discriminatory animus. St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742
(1993). Therefore, we discern no basis to disturb the AJ's findings of no
discrimination which were based on a detailed assessment of the record.
Accordingly, after a careful review of the record, including appellant'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 (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:
March 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations