0120110407
07-30-2012
Matthew Palmer, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Matthew Palmer,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120110407
Agency No. DEN-10-0195-SSA
DECISION
Complainant appeals to the Commission from the Agency's final decision dated September 29, 2010, finding no discrimination. For the following reasons, we AFFIRM the Agency's final decision.
BACKGROUND
In his complaint, Complainant, a Claims Representative, alleged discrimination based on sex (male) and disability (congenital condition) when on October 30, 2009, he was rated at Level 3 in three categories of his 2009 Performance Assessment and Communication System (PACS) Plan. After completion of the investigation of the complaint, Complainant did not request a hearing. The Agency thus issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incident. Complainant claimed that he received a rating of 3, i.e., Successful Contribution, in his performance elements of "Interpersonal Skills," "Participation," and "Demonstrates Job Knowledge." Complainant's supervisor stated that she did not give Complainant a rating of 5, i.e., Outstanding Contribution, for the above three performance elements because he did not meet a majority of the characteristics listed for a 5 rating. Specifically, the supervisor indicated that while Complainant performed his own job duties very well and had shown initiative and leadership on occasion, he did not provide sustained leadership, did not take initiative, and did not provide motivation to other team members throughout the rating period in order to earn a 5 rating.
Upon review, we find that Complainant failed to show that he was treated less favorably than a similarly situated employee under similar circumstances. It is noted that we do not address in this decision whether Complainant is a qualified individual with a disability. It is also noted that Complainant has not claimed that he was denied a reasonable accommodation. Specifically, Complainant stated that he was able to his position duties without accommodation and, furthermore, he never asked for an accommodation to perform any of his duties. The supervisor indicated that she was not informed of or aware of Complainant's disability. Also, the supervisor denied that she considered Complainant's disability, his low sick leave balance, or his sex as he claimed. Based on the foregoing, we find that Complainant has failed to show that the Agency's action was motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
7/30/12
__________________
Date
2
0120110407
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110407