05981021
01-05-2001
Katherine A. Zanko, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Katherine A. Zanko v. Social Security Administration
05981021
January 5, 2001
.
Katherine A. Zanko,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Request No. 05981021
Appeal No. 01966375
Agency No. SSA-868-94
Hearing No. 370-95-X2815
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Katherine
A. Zanko v. Social Security Administration, EEOC Appeal No. 01966375
(June 18, 1998).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In her request, complainant's attorney argues that the agency failed
to establish legitimate, nondiscriminatory reasons for the adverse
actions taken against complainant, who asserted that these actions
were taken in reprisal for complainant's informal filing of an EEO
complaint. One of these actions was a �Performance Plan Objective�
(PPO) given to complainant by her immediate supervisor (S-1), which
was not an established written agency procedure but created solely
for complainant's use after complainant had received an �unacceptable�
progress review from S-1. Hence, complainant claimed this was evidence of
a retaliatory motive. The Commission finds, however, that S-1 proffered
a legitimate, nondiscriminatory reason for giving complainant the PPO,
namely, that the latter refused to talk with her after receiving the
critical progress review. Complainant has not shown that this reason
is a pretext to mask discrimination.
Complainant next contends that in reprisal for her complaining to the
agency Commissioner regarding her adverse treatment, which was a protected
EEO activity, she was assigned to a 120-day detail in an isolated area.
Again, the agency proffers a legitimate, nondiscriminatory reason for
doing so, which was that complainant's continued working under the
supervision of S-1 and S-2 (her second-level supervisor) had become too
disruptive of agency functions, and the only solution was to separate
the parties. Complainant did not show that this reason was pretextual.
Similarly, complainant contends that she was given an official reprimand
by S-2 in reprisal for bringing a problem she had with S-1 and S-2
straight to the Director's attention. We find that the reprimand was
justified, however, because she failed to follow the established chain of
command for resolving such problems, as specified in agency regulations.
In addition, complainant includes as evidence of disparate treatment,
the example of an employee similarly situated to her who was also harassed
and humiliated by S-1 and S-2. Because this employee did not file an EEO
complaint against S-1 and S-2, as did complainant, she was not subject
to any adverse actions. Owing to this difference in circumstances,
however, the agency found that complainant could not establish a prima
facie case of reprisal, since she could not show a causal connection
between the protected activity of filing an EEO complaint and the adverse
actions from which an inference of retaliatory motive could be drawn.
We agree with the agency's reasoning.
Finally, complainant contends that evidence of a reprisal motive is
apparent because each of the above adverse actions occurred within
several months after S-1 and S-2 had become aware in February 1994 that
she had filed an informal EEO complaint the previous summer. As noted
above, however, we find that the agency has proffered legitimate,
nondiscriminatory reasons for taking each of the above actions,
which complainant has not been able to show were pretexts to mask a
discriminatory animus.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission therefore finds
that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b),
and it is the decision of the Commission to deny the request.
The decision in EEOC Appeal No. 01966375 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this 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
January 5, 2001
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.