Stanley Axel, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 8, 2001
01a00045 (E.E.O.C. Feb. 8, 2001)

01a00045

02-08-2001

Stanley Axel, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Stanley Axel v. Social Security Administration

01A00045

February 8, 2001

.

Stanley Axel,

Complainant,

v.

Kenneth S. Apfel,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A00045

Agency No. 99-0144-SSA

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant

alleged that he was discriminated against on the bases of sex (male),

age (60), and reprisal (prior EEO activity) when, on November 24, 1998,

agency management denied his request to have 66 hours of annual leave

restored and charged to administrative leave.

The record reveals that during the relevant time, complainant was

employed as a Social Insurance Specialist, GS-105-12, Office of Program

Benefits, at the agency's Baltimore, Maryland Office of Disability

and Income Security Programs. Complainant had sought administrative

leave for purposes of attending court relative to a civil action he had

filed against the agency. The agency, however, denied the request for

administrative leave and instead, charged complainant with annual leave

for the requested hours.

Believing he was a victim of discrimination, complainant sought

EEO counseling and subsequently filed a formal complaint on January

13, 1999. At the conclusion of the investigation, complainant was

informed of his right to request a hearing before an EEOC Administrative

Judge or alternatively, to receive a final decision by the agency.

When complainant failed to respond within the time period specified in

29 C.F.R. � 1614, the agency issued a final decision.

In its FAD, the agency determined that complainant was not entitled to

administrative leave because the leave he sought was for purposes of

attending a civil action court proceeding rather than an administrative

proceeding. The agency reasoned that inasmuch as complainant had filed a

civil court action concerning his previously raised discrimination claim,

his doing so terminated the administrative processing of his complaint

by the agency. Hence, according to agency regulations, complainant

was not entitled to official court leave when, as was the case here,

attendance was �[o]n the employee's own behalf in private litigation

when a governmental entity is one of the parties.� In such a situation,

court leave could not be granted and instead, �[a]nnual leave or leave

without pay must be charged.�

In his appeal, complainant cites the case of Mitchell v. Baldridge, 662

F. Supp. 907 (D.D.C., 1987) for the proposition that a federal employee

is entitled to �administrative leave for the time spent at depositions,

meetings with counsel, pretrial preparation, discovery,� etc., in a

judicial proceeding. The agency did not reply to complainant's contention

on appeal.

In cases such as this where a related judicial proceeding follows

an administrative one, the Commission takes the position that it is

the policy of the relevant agency which shall determine whether the

complainant is to be allotted administrative leave to pursue Title VII

actions in federal court. See Tucker v. United States Postal Service,

Request No. 05900775 (August 23, 1990). In the instant case, agency

regulations did not allow for such leave to be granted, as noted above.

The Commission further finds that complainant failed to present evidence

that more likely than not, this articulated reason by the agency for its

denial of administrative leave was a pretext to mask a discriminatory

motivation. Therefore, after a careful review of the record, including

complainant's contention on appeal, and arguments and evidence not

specifically addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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), 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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 8, 2001

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

1 On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.