0120080109
12-07-2009
Edward J. Simpkins, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Edward J. Simpkins,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120080109
Agency No. 06-11-088
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleged that he was
subjected to discrimination on the bases of race (African-American), sex,
(male), age (46) and in reprisal for prior protected EEO activity when:
1. On an unspecified date, complainant was assigned an unequal
distribution of work.
2. On an unspecified date, complainant stated that he was not provided
a six month mid year performance review from October 1, 2005 through
March 31, 2006.
3. On an unspecified date, complainant stated that his supervisor told
him that his telephone work performance was below average.
BACKGROUND
The record reveals that, during the relevant time, complainant was
employed as a Benefits Advisor for the Employee Benefits Security
Administration (EBSA). Believing that he was victim of discrimination,
complainant sought EEO counseling and subsequently filed a complaint
on June 1, 2006. At the conclusion of the investigation, the agency
informed complainant of his right to request a hearing before an EEOC
Administrative Judge (AJ), or alternatively, to receive a final decision
from the agency. Complainant requested a final decision from the agency.
The agency issued a final decision on September 17, 2007, finding
complainant failed to prove that he was subjected to discrimination as
alleged.
Thereafter, complainant filed an appeal challenging the agency's final
decision. On appeal complainant requests that his case be remanded to the
agency so that they provide "all valid, unbiased and correct evidence"
concerning his complaint. Complainant asserts that the agency failed
to provide all evidence for his complaint to prove by a preponderance of
the evidence that reprisal, race, sex and age discrimination took place.
Complainant argues that a prior settlement agreement between the Pension
Welfare Benefits Administration (PWBA), which is now EBSA, and complainant
clearly shows prior EEO activity.
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").
Despite complainant's contentions on appeal, we find the record in this
case was fully developed.
Upon review, we find that the agency articulated a legitimate,
nondiscriminatory reason for its actions. Regarding claim 1, the
Supervisor Benefits Advisor (Supervisor), complainant's supervisor, stated
that work was assigned to three GS-12 Benefits Advisors. The record
shows that in fiscal year 2006, Employee A was assigned 1619 cases,
Employee B was assigned to1511 cases, and complainant was assigned
1562 cases. The Supervisor said that a majority of the telephone cases
were self-assigned as they come through the conversant system, and are
answered live by the three Benefits Advisors who are in the Office and
who make themselves available for calls.
As to claim 2, the Supervisor said that he attempted to provide a
mid-year review with complainant on May 25, 2006, but that complainant
walked out about 30 seconds after the session began and did not sign the
mid-year review certification. The Supervisor claimed that complainant
said that the review should cover the entire fiscal year up to May 25,
2006 instead of beginning on the date the standards went into effect
(February 3, 2006).
With respect to claim 3, the Supervisor asserted that complainant
consistently has been the lowest producing Benefits Advisor that he
has supervised relative to the number of calls answered during the
period at issue. The Supervisor stated that the Benefit Advisors
were informed that they would be assigned more private letters and
electronic mail messages to make up for the low number of calls handled.
The Supervisor argued that he informed other Benefits Advisors in the
office that their performance in answering phone calls had been less
than expected in fiscal year 2006.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons for its actions.
Complainant failed to show that the agency's actions were motivated by
discrimination. Moreover, complainant failed to show, by a preponderance
of the evidence, that he was subjected to discrimination on the bases
of race, sex, age, or reprisal.
The agency's decision finding no discrimination is AFFIRMED.
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
December 7, 2009
__________________
Date
2
0120080109
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013