01975663
10-03-2000
Gregory M. Chaklos, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Gregory M. Chaklos v. Social Security Administration
01975663
10-03-00
.
Gregory M. Chaklos,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01975663
Agency No.96-0374
DECISION
On July 14, 1997, Gregory M. Chaklos (hereinafter referred to as
complainant) filed a timely appeal from the July 7, 1997, final decision
of the Social Security Administration (hereinafter referred to as the
agency) concerning his complaint of unlawful employment discrimination in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791,
794(c). The appeal is timely filed (see 29 C.F.R. � 1614.402(a))<1>
and is accepted in accordance with 29 C.F.R. � 1614.405). For the
reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated
against him on the basis of disability (orthopedic foot, back injury,
Lyme disease) when he was not allowed to apply for two positions in
February 1996.
Complainant filed his formal complaint on July 15, 1996. Following an
investigation, he was advised of his right to request a hearing before an
EEOC Administrative Judge or an immediate final agency decision (FAD),
and he did not request a hearing.<2> The agency issued its FAD, finding
no discrimination.
Complainant sought to apply for two vacancies posted by the agency,
i.e., Legal Assistant (Vacancy No. OC-95-45) and Paralegal Specialist
(Vacancy No. 96-2), but was foreclosed from doing so based on the
exclusion of non-employee applicants, the area of consideration being
limited to agency employees. The agency asserted that, at the time
of these postings, it was operating under a continuing resolution that
precluded it from hiring new employees and consequently was limited to
an internal applicant pool to fill all vacancies.
In his appeal statement, complainant argues that the agency's limitation
on its applicant pool had an adverse impact on him, in that, he, as a
disabled person, could not receive affirmative action and reasonable
accommodation required by the Rehabilitation Act. He also raised a
new claim that the agency's selection limitation had a disparate impact
on persons with disabilities.<3> Complainant repeated his request for
a supplemental investigation to provide information as to jobs filled
during this period.
For purposes of analysis, we will assume that complainant is a qualified
person with a disability and has established a prima facie case.
See 29 C.F.R. �1630.2(g); 29 C.F.R. �1630.2(i). See McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973); Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981). Where the agency articulates an
explanation for its actions, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis--the ultimate question of
whether complainant has shown by a preponderance of the evidence that the
agency's action was motivated by discrimination. United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
It is complainant's burden to demonstrate by a preponderance of the
evidence that the agency's action was based on prohibited considerations
of discrimination, that is, its articulated reason for its action
was not its true reason but a sham or pretext for discrimination.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We find that the agency articulated legitimate, nondiscriminatory reasons
for its actions, i.e., that it was subject to a continuing resolution
and was limited to an internal applicant pool for all vacancies.
Complainant has not demonstrated that the agency's reasons were not the
true reasons or otherwise demonstrated that its actions were based on
unlawful discrimination.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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
____10-03-00______________
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
______________________________
1On 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.
2Complainant, through counsel, requested a supplemental investigation.
The agency found that the investigative file was sufficient to render
a decision on the merits of the complaint.
3Complainant did not present statistical evidence to show that the
employment practice in question, though facially neutral, had a disparate
impact on members of his group. See Watson v. Fort Worth Bank & Trust,
487 U.S. 977, 996 (1988); see also Stocker v. Department of the Interior,
EEOC Petition No. 03970086 (May 7, 1998).