05a00831
02-15-2001
Ann J. Green, Complainant, v. William A. Halter, Acting Commissioner, Social Security Administration, Agency.
Ann J. Green v. Social Security Administration
05A00831
02-15-01
.
Ann J. Green,
Complainant,
v.
William A. Halter,
Acting Commissioner,
Social Security Administration,
Agency.
Request No. 05A00831
Appeal No. 01996278
Agency Nos. 96-0044-SSA; 95-0549-SSA
DECISION ON REQUEST TO RECONSIDER
On May 30, 2000, Ann J. Green (complainant) timely initiated a request to
the Equal Employment Opportunity Commission to reconsider the decision
in Ann J. Green v. Kenneth L. Apfel, Commissioner, Social Security
Administration, EEOC Appeal No. 01996278 (May 3, 2000). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider any
previous decision where the party demonstrates that: (1) the previous
decision involved a clearly erroneous interpretation of material fact or
law; or (2) the decision will have a substantial impact on the policies,
practices or operation of the agency. 29 C.F.R. � 1614.405(b).<1>
For the reasons set forth below, the complainant's request is denied.
The issue presented is whether complainant's request meets the criteria
for reconsideration of the previous decision.
Complainant filed formal complaints alleging discrimination based on
race (black) and reprisal, and she was harassed, when (a) her calls and
use of time were monitored; (b) her SF-7B file had not been purged; and
(c) she was not relieved of �Spike� duties. Following investigations,
complainant requested an immediate final agency decision (FAD). On July
2, 1999, the agency issued its FAD, finding no discrimination. On appeal,
the previous decision affirmed the agency.
Complainant worked as a debt collection representative in Birmingham,
Alabama. She claimed that her calls and smoking breaks were monitored
and that she was given a "conduct interview" regarding her use of time,
with information being placed in her SF-7B file; that her husband, whom
she was divorcing, continually called and harassed her, but the agency
did not do anything to stop him; that her supervisors were aware that
she was identified as a witness in another employee's EEO complaint;
that there was old material in her SF-7B file; and that the agency
refused to release her from Spike duties, which increased her stress.
The agency stated that complainant's telephone use for personal business
was prohibited by agency policy and that, while her supervisor gave her
some leeway, complainant used the phone excessively and was absent for
extended time periods. Also, an agency official explained that Spike
duties were assigned based on seniority and were within complainant's
job description.
Complainant has filed a request that the Commission reconsider the
previous decision, arguing that an adverse inference should be drawn
against the previous decision based on its failure to discuss and
analyze the reasons for its finding of no discrimination. She requests
that documents submitted on appeal be reviewed. The agency submitted
comments in support of its FAD and the previous decision.
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow, and it is not a form of second appeal. Lopez v. Department of
the Air Force, EEOC Request No. 05890749 (September 28, 1989); Regensberg
v. USPS, EEOC Request No. 05900850 (September 7, 1990).
The Commission's regulations require that all appeals be given a de novo
review. 29 C.F.R. � 1614.405(a). On appeal, the entire record in this
matter and all statements submitted on appeal were thoroughly reviewed.
Complainant's claims present claims of disparate treatment and
harassment. In the McDonnell Douglas<2> scheme, once the agency
articulated legitimate, nondiscriminatory reasons for its actions, the
ultimate burden of persuasion returns to the complainant to demonstrate
by preponderant evidence that the reasons given by the agency for its
actions were pretextual or a sham or disguise for discrimination.
The complainant must show that the agency's action was more likely
than not motivated by discrimination, that is, that the action was
influenced by legally impermissible criteria, i.e., race and reprisal.
Absent a showing that the agency's articulated reason was used as a tool
to discriminate against her, complainant cannot prevail. After a review
of complainant's request and the entire file, we find that complainant
has not submitted probative evidence to demonstrate pretext. Further,
complainant has not shown that the incidents of which she complained were
sufficiently pervasive and severe as to constitute illegal harassment or
that the agency's actions were unwarranted. See, generally, Enforcement
Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
CONCLUSION
After a review of the complainant's request for reconsideration,
the agency's reply thereto, the previous decision, and the entire
record, the Commission finds that the complainant's request fails
to meet any of the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny the complainant's request.
The decision of the Commission in EEOC Appeal No. 01996278 (May 3, 2000)
remains the Commission's final decision. There is no further right of
administrative appeal from a decision of the Commission on a request
for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
____02-15-01______________
Date
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 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.
2McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).