01981317
11-13-1998
Debra W. Sheikh, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration) Agency.
Debra W. Sheikh v. Social Security Administration
01981317
November 13, 1998
Debra W. Sheikh, )
Appellant, )
) Appeal No. 01981317
v. ) Agency No. SSA-157-95
) Hearing No. 330-96-8159X
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration)
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning her
allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission hereby
accepts the appeal in accordance with EEOC Order No. 960, as amended.
The issue presented is whether appellant proved, by a preponderance
of the evidence, that she was discriminated against because of her race
(Black), religion (Christian), and reprisal (prior EEO complaints) when on
October 19, 1994, she received a performance appraisal rated "Excellent"
rather than "Outstanding," which she had received the year before.
On appeal, appellant makes many contentions, chief among them that the
testimony of the Administrative Law Judge (ALJ) for whom she (appellant)
worked contradicted most of his written statements and that another White
Legal Assistant (LA) who had worked for the ALJ the previous rating
period made a great deal of errors but did not have her performance
appraisal rating lowered from the year before. The agency did not
respond to appellant's contentions on appeal.
At the time of her complaint, appellant was employed by the agency as
an LA. Believing that she was a victim of discrimination, appellant
sought EEO counseling and later filed a formal EEO complaint dated
December 17, 1994, wherein she alleged that she had been discriminated
against on the above-referenced bases when she received the performance
appraisal rated "Excellent."
The agency complied with all procedural and regulatory prerequisites,
and on October 29, 1966, the EEOC Administrative Judge (AJ) issued
a Recommended Decision (RD) finding no discrimination on any basis.
Subsequently, the agency adopted the RD as its own final decision.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We therefore discern no
basis to disturb the AJ's finding of no discrimination.
We note in particular that the record contains sufficient evidence to
justify lowering appellant's performance rating to "Excellent" from
"Outstanding" the year before. Her supervisor (S-1) testified that she
had problems with appellant's tracking of cases and work done out of
turn and that appellant continued to place cases in areas where she had
been told not to stack certain types of cases. In addition, the ALJ
testified without contradiction that he had problems with appellant's
readying of cases to write and noted that appellant had not mailed
certified letters which were time sensitive and that such failure to
mail could deprive a beneficiary of due process. Appellant was not
able to show that these concerns were a pretext to mask discrimination
by S-1 and the ALJ. Moreover, appellant was not able to establish a
prima facie case of race discrimination, since all of the LAs rated by
S-1 during the relevant time period were Black. Therefore, appellant
could not use the White LA as a comparison employee who received more
favorable treatment in similar circumstances. In any event, we note
that the rating of the White LA was only "Excellent" to begin with and
remained at that level while she worked for the ALJ.
It is accordingly the decision of the EEOC to AFFIRM the agency's final
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. �l6l4.604(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:
Nov 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations