01a52600_r
04-21-2006
Stanley Dunbar, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Stanley Dunbar v. Social Security Administration
01A52600
April 21, 2006
.
Stanley Dunbar,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A52600
Agency No. 01-0393-SSA
Hearing No. 280-2003-04191X
DECISION
Complainant filed an appeal from an agency's final action concerning her
complaint of unlawful employment discrimination. In her complaint, filed
November 20, 2001, complainant, a full-time career conditional GS-105-7
Claims Representative (trainee), alleged discrimination based on race
(Black), color (black), and sex (male) when effective May 2, 2001,
he was terminated from his position during his probationary period.
The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ, after a hearing, issued a decision finding no discrimination,
which was implemented by the agency in its final action.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
The AJ stated, assuming arguendo that complainant had established a prima
facie case of discrimination, that the agency has articulated legitimate,
nondiscriminatory reasons for complainant's termination. Specifically,
complainant's supervisor stated that complainant was terminated because
of his poor performance during his probationary period and poor attitude
toward his coworkers and supervisors. The supervisor indicated that
on one occasion, complainant adjudicated a claimant's claim without
obtaining a translation of the claimant's birth certificate which was
in Croatian or determining how the claimant's citizenship was proved.
The supervisor stated that complainant fabricated a number of claims
without proper documentation and evaded review of his work.
Complainant claimed that he was terminated after he challenged the
agency's dress code policy, especially, concerning his wearing jeans
and sandals at work. The supervisor, however, denied complainant's
contentions and stated that the termination was solely due to
complainant's poor performance and conduct. The supervisor indicated
that while employees had been told when their attire was inappropriate,
no one had ever been terminated for unprofessional office attire.
The AJ found the supervisor's testimony throughout the hearing credible,
whereas he found complainant's testimony disingenuous, inconsistent,
and unreliable. The AJ stated that the record clearly demonstrated
that at the time of complainant's termination, he was not meeting the
legitimate expectations of the agency relative to his work performance.
The AJ determined that complainant failed to show by a preponderance of
the evidence that the agency's proffered reasons were pretextual. The
AJ's decision is supported by substantial evidence. Furthermore, we find
no indication that the AJ conducted the hearing in any improper manner.
The agency's final action is AFFIRMED because a preponderance of the
record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
April 21, 2006
__________________
Date