01972515
09-09-1999
Monique Prince, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Monique Prince, )
Appellant, )
) Appeal No. 01972515
v. ) Agency No. 96-0036-SSA
) Hearing No. 380-96-8186X
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
Appellant 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 race (Black) in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. Appellant alleged she was discriminated against when she was not
hired as a Teleservice Representative (TSR). For the following reasons,
the agency's decision is AFFIRMED.
Following an investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing. The agency's FAD adopted the RD. It is from
this decision that appellant now appeals.
The record reveals that during the relevant time period, appellant was
selected for a TSR position at the agency's Auburn Teleservice Center
(ATSC) in Seattle, Washington.
The AJ concluded that appellant established a prima facie case of race
discrimination because after her selection she was replaced, and a White
candidate was selected. However, the AJ found that appellant failed to
establish that the agency's legitimate reasons for not hiring her were a
pretext for discrimination. Appellant was replaced with the next person
on the list of selected persons because she was not expected to appear
in the next training class of August 14, 1995. Appellant was initially
scheduled for an August 7, 1995 class, but communicated that she would not
be able to relocate in time. The agency�s position is that appellant said
she needed two weeks, but that two weeks was too long. Appellant contends
that a mutually agreed on date was August 16, 1985, however there is no
documentation in support of that date. When appellant arrived in town
on August 14, she was informed that she no longer had a position.
Appellant failed to provide any evidence that she was, as alleged,
specifically replaced with a White candidate who was the wife of an ATSC
section chief. We note further appellant's contention that, contrary
to the finding of the AJ, the agency was aware of appellant's race.
We find that this fact alone has no bearing on the outcome of this
case. Appellant has failed to produce persuasive evidence which would
demonstrate that appellant's non-selection was based on her race.
On appeal, appellant contends that she has been discriminated against
based on reprisal (prior EEO activity), because while the agency promised
to place her on other certificates of eligible candidates, she has not
been selected from any certificates for any positions. The Commission
finds that this non-selection issue is a new allegation, and that
appellant can not raise it for the first time on appeal. Appellant is
advised that if she wishes to pursue, through the EEO process, this
additional allegation, she must contact an EEO counselor within 15 days
after she receives this decision. The Commission advises the agency
if appellant seeks EEO counseling regarding this new allegation within
the above 15 day period, the date appellant filed the appeal statement
in which she raised this allegation shall be deemed the date of initial
EEO contact, unless she previously contacted a counselor regarding this
matter, in which case the earlier date shall serve as the EEO counselor
contact date. Cf. Qatasha v. Navy, EEOC Request No. 05970201 (January
16, 1998).
After a careful review of the entire record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, the Commission finds that the AJ's RD
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that appellant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
towards appellant's race. Therefore, the Commission discerns no basis to
disturb the AJ's findings of no discrimination. Accordingly, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
9/09/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations