01a05589
12-08-2000
Theodore Stephens, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Theodore Stephens v. Social Security Administration
01A05589
December 8, 2000
.
Theodore Stephens,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A05589
Agency No. 990429SSA
Hearing No. 150AO8373X
DECISION
Complainant timely initiated an appeal from the agency's August 18,
2000 final decision (FAD) finding no discrimination concerning his
equal employment opportunity (EEO) 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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges he was discriminated against
on the basis of race (African-American), sex (male), and reprisal (prior
EEO complaint) when the agency denied his request to restore 179.5 hours
of �use of lose� annual leave accrued while he was on administrative
leave prior to his January 20, 1999 separation from the agency. For the
following reasons, the Commission AFFIRMS the agency's finding of no
discrimination.
The record reveals that complainant, formerly an Administrative Law
Judge at the agency's Miami, Florida hearings office, filed a formal EEO
complaint with the agency on July 23, 1999, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Prior to the hearing, the agency submitted a motion for summary judgment
claiming that there were no genuine issues of material fact in dispute.
Complainant opposed the agency's motion. The AJ found that there was no
dispute as to any material facts and there was sufficient information
upon which to base a decision without a hearing. As a result, the AJ
granted the agency's motion for summary judgment and issued a July 5,
2000 decision finding no discrimination. By a final action dated August
18, 2000, the agency stated that it was fully implementing the AJ's
decision finding no discrimination.
On appeal, complainant contends that the AJ was incorrect in finding
that there were no genuine issues of material fact and granting the
agency's motion for summary judgment. Complainant also contends that
the AJ was incorrect in finding that the agency's refusal to restore
179.5 hours of �use of lose� annual leave did not violate Title VII.
The agency requests that we affirm its August 8, 2000 FAD.
Commission's regulations allow an AJ to issue a decision without a hearing
when he or she finds that there is no genuine issue of material fact.
This regulation is patterned after the summary judgment procedure set
forth in Rule 56 of the Federal Rules of Civil Procedure. The Supreme
Court has stated that summary judgment is appropriate where the court
determines that, given applicable substantive law, no genuine issue of
material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). An issue is �genuine� if the evidence is such that a
reasonable fact-finder could find in favor of the non-moving party.
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
Only a dispute over facts that are truly material to the outcome of
the case will preclude summary judgment. Anderson, 477 U.S. at 248-49.
For example, when a complainant is unable to set forth facts necessary
to establish one essential element of a prima facie case, a dispute
over facts necessary to prove another element of the case would not
be material to the outcome. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); EEOC MD-110, at 715 (November 9, 1999). In order to avoid
summary judgment, the non-moving party, complainant herein, must produce
admissible factual evidence sufficient to demonstrate the existence of a
genuine issue of material fact requiring resolution by the fact-finder.
Celotex Corp., supra. In determining whether to grant summary judgment,
the fact-finder's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
The courts have been clear, however, that summary judgment is not to be
used as a �trial by affidavit.� Redmand v. Warrener, 516 F.2d 766, 768
(1st. Cir. 1975). The Commission has noted that when a party submits
an affidavit and credibility is at issue, �there is a need for strident
cross-examination and summary judgment on such evidence is improper.�
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
Our review of a case where summary judgment has been granted is de novo.
See Equal Employment Management Directive for 29 C.F.R. Part 1614
(EEO-MD-110), at 9-16 (November 9, 1999).
After a careful review of the record, we find that the AJ was correct
in concluding that there were no genuine issues of material fact
in this case. The AJ found that complainant failed to establish a
prima facie case of based on his race or sex. Specifically, the AJ
found that complainant failed to demonstrate that similarly situated
employees, not in his protected class, were treated differently, i.e.,
were granted restoration of leave under similar, or for that matter any
other, circumstances. The AJ further found that complainant offered
no evidence of any other agency actions that, if otherwise unexplained,
would raise an inference of discrimination. In addition, although the AJ
found that complainant established a prima facie case of retaliation,
the agency articulated a legitimate nondiscriminatory reason for
its actions. The Regional Chief Administrative Law Judge stated, and
complainant does not dispute, that complainant did not meet the criteria
established in the agency's personnel manual for restoration of leave.<2>
Complainant argues that the agency's regulations cannot logically be
applied to his situation because he was on administrative leave and,
therefore, it would not make sense for him to request annual leave during
that time. While it may be true that the agency's rules do not directly
address the situation of an employee accruing annual leave while on paid
administrative leave, nevertheless, the Commission finds that the record
is insufficient to establish that the agency's conduct in following those
rules was discriminatory. Consequently, the complainant has failed to
establish that more likely than not, the agency's articulated reasons for
its actions were a pretext to mask unlawful discrimination/retaliation.
Thus, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we find no reason to disagree
with the AJ's determination that there were no genuine issues of material
fact in this case. Therefore, we concur in the AJ's determination,
find that summary judgment was appropriate in this case, and AFFIRM the
agency's August 18, 2000 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
December 8, 2000
__________________
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.
2 There are only three occasions when leave restoration may be granted
under the agency's rules: administrative error; illness or injury;
and exigency of public business.