01a00045
02-08-2001
Stanley Axel, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Stanley Axel v. Social Security Administration
01A00045
February 8, 2001
.
Stanley Axel,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A00045
Agency No. 99-0144-SSA
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that he was discriminated against on the bases of sex (male),
age (60), and reprisal (prior EEO activity) when, on November 24, 1998,
agency management denied his request to have 66 hours of annual leave
restored and charged to administrative leave.
The record reveals that during the relevant time, complainant was
employed as a Social Insurance Specialist, GS-105-12, Office of Program
Benefits, at the agency's Baltimore, Maryland Office of Disability
and Income Security Programs. Complainant had sought administrative
leave for purposes of attending court relative to a civil action he had
filed against the agency. The agency, however, denied the request for
administrative leave and instead, charged complainant with annual leave
for the requested hours.
Believing he was a victim of discrimination, complainant sought
EEO counseling and subsequently filed a formal complaint on January
13, 1999. At the conclusion of the investigation, complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614, the agency issued a final decision.
In its FAD, the agency determined that complainant was not entitled to
administrative leave because the leave he sought was for purposes of
attending a civil action court proceeding rather than an administrative
proceeding. The agency reasoned that inasmuch as complainant had filed a
civil court action concerning his previously raised discrimination claim,
his doing so terminated the administrative processing of his complaint
by the agency. Hence, according to agency regulations, complainant
was not entitled to official court leave when, as was the case here,
attendance was �[o]n the employee's own behalf in private litigation
when a governmental entity is one of the parties.� In such a situation,
court leave could not be granted and instead, �[a]nnual leave or leave
without pay must be charged.�
In his appeal, complainant cites the case of Mitchell v. Baldridge, 662
F. Supp. 907 (D.D.C., 1987) for the proposition that a federal employee
is entitled to �administrative leave for the time spent at depositions,
meetings with counsel, pretrial preparation, discovery,� etc., in a
judicial proceeding. The agency did not reply to complainant's contention
on appeal.
In cases such as this where a related judicial proceeding follows
an administrative one, the Commission takes the position that it is
the policy of the relevant agency which shall determine whether the
complainant is to be allotted administrative leave to pursue Title VII
actions in federal court. See Tucker v. United States Postal Service,
Request No. 05900775 (August 23, 1990). In the instant case, agency
regulations did not allow for such leave to be granted, as noted above.
The Commission further finds that complainant failed to present evidence
that more likely than not, this articulated reason by the agency for its
denial of administrative leave was a pretext to mask a discriminatory
motivation. Therefore, after a careful review of the record, including
complainant's contention on appeal, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 8, 2001
Date
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
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.