01-2006-1920_Herren
05-16-2008
Steven D. Herren, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Steven D. Herren,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200619201
Agency No. 050059SSA
Hearing No. 130-A5-0205X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 28, 2005 final order concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Complainant alleged that the agency discriminated against him on the bases
of race (Caucasian), sex (male), and age (51)2 when he was reprimanded
on August 26, 2004,for discourteous telephone behavior.
Following a hearing, an EEOC Administrative Judge (AJ) concluded that
complainant failed to present sufficient evidence in support of the
finding that the agency's articulated legitimate, non-discriminatory
explanation for reprimanding complainant was pretext for discrimination.
Specifically, the AJ noted that complainant received the letter of
reprimand after four customer service complaints were received concerning
his telephone etiquette. The AJ also concluded that the agency had
a good-faith belief that the discourteous service reports concerning
complainant were legitimate. For example, some of the reports came from
someone who was working in another location. Another report came from
someone who actually heard complainant on the telephone. A third report
came from a social worker.
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 order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 16, 2008
__________________
Date
1 Due to a new data system, complainant's case has been re-designated
with the above-referenced appeal number.
2 All references to complainant's age pertain to the time period
referenced in the complaint.
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0120061920
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036