Monique Prince, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01972515 (E.E.O.C. Sep. 9, 1999)

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