01970688
05-31-2000
Terry J. Fox, Complainant, v. David J. Barram, Administrator, General Services Administration, Agency.
Terry J. Fox v. General Services Administration
01970688
May 31, 2000
Terry J. Fox, )
Complainant, )
)
v. ) Appeal No. 01970688
) Agency No. 94-R9-PBS-TJF-08
David J. Barram, ) Hearing No. 370-96-2385X
Administrator, )
General Services Administration, )
Agency. )
)
DECISION
On October 30, 1996, Terry J. Fox (hereinafter referred to as complainant)
filed a timely appeal from the October 17, 1996, final decision of
the General Services Administration (hereinafter referred to as the
agency) concerning his complaint of unlawful employment discrimination
in violation of 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), and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. � 621 et seq. The appeal is timely filed
(see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance
with 64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
him on the bases of race (white), disability (hip injury, knee and back
problems), sex, age (49), and reprisal with regard to certain events
in 1993-1994.
Complainant sought EEO counseling on February 2, 1994, and filed
his formal complaint on March 10, 1994. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
A hearing was held in July 1996, and the AJ found no discrimination.
The agency adopted the AJ's decision as its final decision. Complainant
has filed an appeal<2> without substantive argument as to the merits of
his case.
At the time of the events herein, complainant worked as an Architectural
Specifications Writer in the Estimating Section.<3> He complained
about certain events with regard to the terms and conditions of his work.
The AJ found that complainant failed to establish a prima facie case based
on age, since his co-workers and supervisors were older or of the same
approximate age; that he failed to establish a prima facie case based on
sex, since all co-workers and supervisors were male; that he failed to
establish disability discrimination; and that he failed to establish a
prima facie case based on reprisal, in that, he had no prior EEO activity.
AJ's Recommended Decision, pp. 16-18. With regard to his claim based
on race, the AJ found that complainant established a prima facie case
but found that the events cited by complainant did not occur, were not
supported by the record, or that the agency articulated a legitimate,
nondiscriminatory reason for its actions, which complainant did not
demonstrate were pretextual.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency decision
because the Administrative Judge's ultimate finding, that unlawful
employment discrimination was not proven, is supported by substantial
evidence in the record.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
05-31-00
Date Carlton Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________ __________________
1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Our regulations do not provide for acceptance of documents filed after
30 days from the notice of appeal. 29 C.F.R. � 1614.402.
3Complainant retired on disability in June 1995.