Linda A. Golden, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJan 21, 2000
01974359 (E.E.O.C. Jan. 21, 2000)

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.