01a15000
06-02-2003
Anita Langley, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Anita Langley v. Social Security Administration
01A15000
June 2, 2003
.
Anita Langley,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A15000
Agency No. 97-0478-SSA
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her formal complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as an Attorney-Advisor, GS-905-11 at the agency's Office of
Hearings and Appeals in Paducah, Kentucky facility. Complainant sought
EEO counseling and subsequently filed a formal complaint on July 3, 1997,
alleging that she was discriminated against on the basis of disability
(dyslexia, cognitive learning disorder) and reprisal (prior EEO activity
concerning the Rehabilitation Act) when she was placed on a Performance
Assistance Plan (PAP) on February 1, 1996, received a negative performance
appraisal memorandum on July 19, 1996, received a negative performance
appraisal on September 30, 1996 which extended the PAP for ninety days,
was placed on a Performance Enhance Plan (PEP) on January 8, 1997,
and was terminated effective on March 28, 1997.<1>
The issue of termination was the only one accepted for investigation; the
rest were dismissed pursuant to � 1614.107(b) after the agency determined
that they were brought to the attention of an EEO counselor in an untimely
manner. At the conclusion of the investigation regarding the termination,
complainant was informed of her 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. � 1614.108(f), the agency issued a final decision
in which it found that complainant's termination was not discriminatory.
Procedural Dismissals
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, the dismissed allegations occurred between February 1, 1996
and January 8, 1997. Complainant did not contact an EEO counselor
regarding these matters until May 12, 1997, beyond the forty-five
day limitations period. Moreover, there is no evidence in the file
to justify an extension of the time limit. Therefore, we find that
these issues were appropriately dismissed, and the agency's decision
regarding these issues is affirmed. In so doing, however, we note that
in Langley v. Social Security Administration, EEOC Appeal No. 01983577
(October 24, 2001), the agency was ordered to destroy all negative
documentation regarding the quality and quantity of complainant's work
that were kept during the period (i.e., October 18, 1995 - November 6,
1996) in which complainant was not provided with a grammar check program.
Merit-Based Determinations
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Swanks v. WMATA, 179 F.3d 929, 934
(D.C.Cir. 1999); Heyman v. Queens Village Committee for Mental Health
for Jamaica Community Adolescent Program, 198 F.3d 68 (2d Cir. 1999)
(applying McDonnell Douglas to disability cases)<2>; Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to reprisal cases). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Here, we find that the agency has stated legitimate, nondiscriminatory
reasons for its actions. Specifically, the agency stated that complainant
was terminated because she did little or no work during the period of
February 1997 through March 1997 and was not communicative with her
supervisor.<3>
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In this case, complainant offered no evidence tending to prove that the
agency's stated reasons were designed to mask discriminatory animus.
Consequently, it is our holding to affirm the agency's final decision.
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
June 2, 2003
__________________
Date
1The general rule is that the Merit Systems Protection Board has
initial jurisdiction over cases involving termination. But because
complainant was appointed for a two-year temporary term, the general
rule does not apply.
2In this case, we assume, without finding, that complainant is an
individual with a disability.
3Our prior finding of discrimination was based on the agency's failure
to provide complainant with a reasonable accommodation between the
period of October 18, 1995 to November 6, 1996. See Langley v. Social
Security Administration, EEOC Appeal No. 01983577 (October 24, 2001).
Our finding of no discrimination in this case pertains to the period
after complainant was provided a reasonable accommodation, in which
complainant failed to satisfy the agency's production standards.