01974359
01-21-2000
Linda A. Golden, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Linda A. Golden v. Social Security Administration
01974359
January 21, 2000
Linda A. Golden, )
Complainant, )
) Appeal No. 01974359
v. ) Agency No. SSA-540-94
) Hearing No. 120-96-5428X
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of religion (Jewish),
age (DOB 2/8/48), and physical disability (upper respiratory ailment),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1> Complainant claims
she was discriminated against when on February 22, 1994, her request for
advanced sick leave for the period of February 22, 1994, through March
14, 1994, was denied. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that complainant, a GS-318-04 Financial Clerk at
the agency's Finance Office in Baltimore, Maryland, filed a formal
EEO complaint with the agency on March 31, 1994, alleging that the
agency had discriminated against her as referenced above. At the
conclusion of the investigation, complainant requested a hearing before
an Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). On or around November 20, 1996, the agency filed a Motion for
a Finding and Conclusion Without a Hearing, and served its motion on
the AJ and complainant's representative, the union. On December 10,
1996, and pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Notice
of Decision Without a Hearing, noting that she would issue her findings
and conclusions without a hearing because there were no genuine issues
of material fact in dispute. Neither complainant nor the union objected.
Thereafter, the AJ issued her Recommended Decision (RD) without a hearing,
finding no discrimination.
The AJ found that at the time complainant requested advanced sick leave,
she had not presented evidence that her physical impairments substantially
limited a major life activity, nor did she demonstrate that the agency
had any record of a disability or regarded her as disabled within the
meaning of the Rehabilitation Act.<2> The AJ also found that complainant
had a positive sick leave balance at the time she requested advanced
sick leave, and further, that she did not submit medical documentation
to support her request for advanced sick leave. The AJ noted that
the relevant agency policy concerning sick leave and the relevant
portion of the Collective Bargaining Agreement (CBA) both required that
medical documentation be submitted with requests for advanced sick leave.
The AJ also noted that the CBA required that employees have no available
sick leave at the time a request for advanced sick leave is submitted.
The AJ further noted that while there was evidence that other employees
had been granted advanced sick leave, there was no evidence that such
employees had positive sick leave balances, or had failed to submit
adequate medical documentation. The AJ concluded that complainant failed
to establish a prima facie discrimination on any of her alleged bases
because she failed to demonstrate that similarly situated employees
not in her protected classes were treated more favorably under similar
circumstances. The agency's FAD adopted the AJ's RD. On appeal,
complainant contends that the union failed to inform her of her need
to respond to the agency's Motion For a Finding and Conclusion Without
a Hearing. The agency requests that we affirm its FAD.
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. The Commission notes that complainant
indicated that the union was her representative in her formal complaint,
and she presents no arguments or evidence that her representative did not
receive the agency's Motion for Finding and Conclusion Without a Hearing.
Moreover, complainant did not object to the AJ's Notice of Findings
and Conclusions Without a Hearing, and even absent any submission from
complainant via her representative, an AJ is responsible for evaluating
the record to determine if there any material facts in dispute. See 29
C.F.R. � 1614.109(e); see also Bracey v. United States Postal Service,
EEOC Appeal No. 01912620 (November 6, 1991). We agree with the AJ's
conclusion that complainant failed to present evidence that the agency's
decision to deny complainant's advanced sick leave request was motivated
by discriminatory animus under any of her alleged bases. We discern no
basis to disturb the AJ's findings of no discrimination which were based
on a detailed assessment of the record. Therefore, after a careful
review of the record, including complainant's contentions on appeal,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 21, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
_________________________
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.