0120091768
02-01-2011
Katherine D. Duncan, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Katherine D. Duncan,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120091768
Hearing No. 420-2007-00222X
Agency No. ATL-07-0131-SSA
DECISION
On March 10, 2009, Complainant filed an appeal from the Agency's February
5, 2009, final decision concerning her equal employment opportunity (EEO)
complaint alleging 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 Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether claim 2 should be dismissed for
failure to state a claim; and (2) whether Complainant established that
the Agency discriminated against her in claim 1 on the bases of disability
and reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Clerk, GS-0305-5 at the Agency's Mail Center, Southeastern
Program Service Center (SEPSC), Operations Support Branch, in Birmingham,
Alabama. Complainant has bilateral carpal tunnel syndrome. Complainant's
second-level supervisor (S2) was the Deputy Computer Operations Section
Chief. Complainant's fourth-level supervisor (S4) was the Operations
Support Branch Chief. Complainant's fifth-level supervisor (S5) was
the Assistant Regional Commissioner of SEPSC.
Beginning on November 19, 2003, the Agency placed Complainant on Leave
Without Pay (LWOP)1 because it determined that Complainant's disability
could not be reasonably accommodated.2 Effective February 19, 2005,
the Agency terminated Complainant from her position for inability
to work. Complainant filed a mixed case complaint with the Agency
regarding her termination. After the Agency issued a decision finding
no discrimination, Complainant filed an appeal with the MSPB. On October
26, 2006, the Agency unilaterally rescinded the termination and returned
Complainant to work on October 30, 2006.3
On November 15, 2006, the MSPB issued a decision finding that Complainant
established disability discrimination regarding her termination.4 Duncan
v. Soc. Sec. Admin., MSPB No. AT-0752-06-11141-I-1 (Nov. 15, 2006).
On February 16, 2007, Complainant filed a motion for compensatory damages.
On March 30, 2007, the MSPB issued an Order to provide Complainant with a
second opportunity to submit additional evidence and argument in support
of her compensatory damages claim. On June 1, 2007, the MSPB issued a
decision denying Complainant's motion for compensatory damages, finding
that she failed to show that any of her claim related to her termination.
Duncan v. Soc. Sec. Admin., MSPB Docket No. AT-0752-06-1114-P-1 (June 1,
2007).
During the time when Complainant either was on LWOP (November 19,
2003 to February 18, 2005) or was not an Agency employee as a result
of the termination (February 19, 2005 to October 29, 2006), the Agency
posted multiple internal vacancy announcements for SEPSC positions
for which GS-5 Mail Clerks were eligible.5 Each vacancy announcement
stated that it would accept applications only from Agency employees.
Complainant attested that she did not have access to the internal
vacancy announcements because the Agency only posted them on bulletin
boards inside the facility and on the intranet. In addition, Complainant
attested that she did not have access to her SSA-45, the Agency's internal
job application form, because it was saved on her work computer.
Article 26, Section 8.C.2.b. of the 20006 SSA/AFGE National Agreement
(Agreement) states the following:
Employees scheduled to be absent in excess of 3 weeks for any of the
following reasons: ... (5) Compensable injury ... will be considered for
promotional opportunities within the area of consideration for vacancies
which occur during their absence. Prior to departure, employees should
complete an application with a written request and submit it to their
Servicing Personnel Office [SPO] who will ensure that the application is
considered for vacancies for which the employee is eligible. Employees,
who so desire, may provide information so that they can be contacted
during their absence, and thus provide additional information, as needed.
On January 25, 2007,7 Complainant filed an EEO complaint alleging
that the Agency discriminated against her on the bases of disability
(bilateral carpal tunnel syndrome) and reprisal for prior protected EEO
activity under Section 501 of the Rehabilitation Act of 1973 when:8
1. From November 19, 2003 to February 18, 2005, while she was on
LWOP, management deliberately deprived her of the opportunity to compete
for promotions and reassignments; and
2. From February 19, 2005 to October 29, 2006, after she was
terminated from the Agency, management deliberately deprived her of the
opportunity to compete for promotions and reassignments.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing but subsequently withdrew her request.
Consequently, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
First, the Agency found that Complainant failed to establish a prima
facie case of discrimination on the bases of disability and reprisal.
Next, assuming that Complainant established a prima facie case, the Agency
found that management articulated legitimate, nondiscriminatory reasons
for its actions; namely, Complainant did not comply with the Agency's
policy regarding consideration for vacancies for employees absent for
more than three weeks. Specifically, the Agency cited testimony from
S2 and S4 that the Agreement required employees scheduled to be absent
in excess of three weeks to provide the SPO with a written request to
be considered for positions posted during their absence and a complete
application form. Finally, the Agency found that Complainant failed to
show that the Agency's stated reasons were a pretext for discrimination.
Although Complaint argued that she would have had the opportunity to
compete for the positions "but for" her unlawful LWOP and termination,
the Agency found that management's actions pertaining to her LWOP and
termination were previously adjudicated in an MSPB forum and Complainant
could not reassert those claims in the EEO forum. The Agency noted
that Complainant's LWOP and removal could be considered as background
evidence, but found that such background evidence did not establish
that management's actions, pertaining to her opportunity to compete for
promotions and reassignments, were motivated by discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her representative, focused on the
non-applicability of the policy referenced in the Agreement and the
relevance of the prior EEOC and MSPB decisions finding discrimination
with respect to the Agency's denial of a reasonable accommodation and her
termination. Regarding the 2000 Agreement, Complainant asserted that the
procedure did not apply to her because she was not scheduled to be absent
and had less than two hours to leave the facility on November 18, 2003.
In addition, Complainant asserted that the Agency "deliberately engaged in
deception" by including the 2005 Agreement in the record, even though it
was not in effect when she was on LWOP. Further, Complainant asserted
that evidence of S2's attempts to hide discrimination included her
"insistence on the use of the new contract language" and "conveniently
omit[t]ing" the portion of the policy stating that the written request
had to be submitted prior to the employee's departure. Regarding the
relevance of the prior EEOC and MSPB decisions, Complainant reasoned that
if the Agency initially had not discriminated against her by refusing
to accommodate her disability, she would have had the same opportunity
as her co-workers to access the posted vacancy announcements, complete
her applications, and ultimately be selected. In addition, Complainant
emphasized that she did not file the instant complaint because she was
alleging that she was inadequately remedied regarding her placement on
LWOP or her termination. Finally, Complainant submitted the following
documents from the Agency that were not previously in the record: (1)
a November 19, 2003 memorandum regarding her LWOP; (2) a November 30,
2004 memorandum regarding her proposed termination; and (3) an October
26, 2006 memorandum regarding the rescission of her termination.9
In response, the Agency contended that Complainant's complaint consisted
of two distinct periods of time: when she was on LWOP from November
19, 2003 to February 18, 2005 and when she was not an Agency employee
from February 19, 2005 to October 29, 2006.10 Regarding claim 2, the
Agency argued that the doctrine of res judicata barred re-litigation
of a discrimination claim resulting from Complainant's termination.
Specifically, the Agency noted that Complainant had a prior opportunity at
a separate MSPB proceeding to present evidence of damages related to her
discriminatory termination. Regarding claim 1, the Agency reiterated the
disparate treatment analysis from its final decision and also addressed
Complainant's contentions on appeal. As to management's references to
the 2005 Agreement, the Agency found that it was nearly identical to the
2000 Agreement in that both required an employee on extended absence
to leave a written request and a completed application with the SPO.
As to the 2000 Agreement, the Agency argued that it did not restrict a
"scheduled absence" to voluntary or paid leave and therefore it applied
to Complainant because she was absent for over three weeks and received
OWCP compensation during that time for her carpal tunnel syndrome.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant
to
29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See MD-110, at Ch. 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
Claim 2 - Collateral Attack
Although Complainant asserted on appeal that she "did not file this
complaint because she is alleging that she was not adequately remedied
in regards to ... [the] termination of her employment," we find that the
record reflects otherwise. Complainant attested, "I was deprived of the
opportunity to apply for jobs while ... I was illegally and erroneously
terminated." In a statement submitted to the EEO Counselor, Complainant
alleged that "[b]ut for the established discrimination against me by
the Agency based on my disability, I would not have been .... terminated
and I would have been able to exercise my rights the same as my peers."
The record shows that the internal vacancies posted during this period
were open only to Agency employees. In essence, Complainant's claim is
that because of her discriminatory termination, she was not an Agency
employee and was therefore not eligible to compete for the internal
vacancies posted from February 19, 2005 to October 29, 2006.
Upon review of the record, we find that claim 2 constitutes a collateral
attack on the MSPB process. The Commission has held that an employee
cannot use the EEO complaint process to lodge a collateral attack on
another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596
(July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585
(Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106
(June 25, 1993). Complainant's termination claim was litigated in the
MSPB forum. As previously discussed, Complainant filed an appeal with
the MSPB, the MSPB found disability discrimination, Complainant filed
a motion for compensatory damages, and the MSPB denied her motion for
compensatory damages. Because her lack of opportunity to apply for
internal vacancies was a consequence of her discriminatory removal,
the proper forum for Complainant to have raised this issue was during
the remedy phase of the MSPB proceeding. It is inappropriate to now
attempt to use the EEO process to collaterally attack determinations
which occurred during the MSPB process. As such, we find that claim 2
should be dismissed for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1).
Claim 1 - Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary
depending on the facts of the particular case. McDonnell Douglas, 441
U.S. at 804 n.14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that
the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks,
509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the bases of disability and reprisal, we find that the
Agency articulated legitimate, nondiscriminatory reasons for its actions.
Because Complainant argued that the 2005 Agreement was not in effect while
she was on LWOP, the EEO Investigator asked management whether there was
a similar policy in the 2000 Agreement regarding employees scheduled to
be on extended absences. S2 attested that Complainant "would have been
covered by this policy" because it was her understanding that "this or a
very similar practice was also in place during the period covered by the
2000 contract." In addition, S4 attested that he believed "a similar
practice was in place during the 2000 contact and [the] employee was
covered by this policy." Further, S5 attested that "[t]he language is
consistent with the responsibility of the employee to notify Personnel
of their interests." The record contains a copy of Article 26, Section
8.C.2.b of the 2000 Agreement, which states, in pertinent part, that
employees scheduled to be absent in excess of 3 weeks for a compensable
injury will be considered for promotional opportunities which occur during
their absence if, prior to departure, they complete an application with
a written request and submit it to the SPO. Complainant admitted in
her affidavit that she did not provide the SPO with a written request
and a complete application form prior to her absence on LWOP.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to demonstrate by the
preponderance of the evidence that the Agency's reasons are a pretext
for discrimination. In an attempt to show pretext, Complainant asserted
that the Agency's inclusion of the 2005 Agreement in the record was
deceptive because the agreement was not in effect when she was on LWOP.
In addition, Complainant asserted that the policy outlined in the
2000 Agreement did not apply to her because she was not "scheduled
to be absent" and only had a short time to leave the facility before
going on LWOP. Further, Complainant asserted that S2 tried to cover
up the discrimination by focusing on the 2005 Agreement and omitting
the part of the policy that required employees to submit the written
request prior to their departure. Finally, Complainant alleged that
if the Agency had not initially discriminated against her by refusing
to accommodate her disability, she would have had the same opportunity
as her co-workers to access the posted internal vacancy announcements,
complete her application, and compete for one of the positions.
Upon review of the record, we find that Complainant failed to demonstrate
by a preponderance of the evidence that the Agency's reasons are a
pretext for discrimination. Regarding the 2005 Agreement, we do not
find that the Agency's inclusion of it was deceptive and note that
the Agency also included a copy of the 2000 Agreement in the record.
Regarding the 2000 Agreement, even if we assume that Article 26, Section
8.C.2.b. did not apply to Complainant, we note that management attested
to their belief that the policy did apply to her. In addition, we find
that Complainant presented no evidence that management's mistaken belief
was instead intentional discrimination based on disability or reprisal.
Further, we note that Complainant failed to establish that management
had an affirmative obligation to notify employees, who did not fall
under the cited policy, about internal vacancies while they were on LWOP.
Although Complainant asserted that management should have informed her of
the internal vacancies, there is no evidence in the record that management
was required to do so. Regarding the prior findings of discrimination
involving Complainant, we note that the Agency's discriminatory actions
related to the reasonable accommodation and termination do not establish
that their failure to notify Complainant about internal vacancies while
she was on LWOP was similarly discriminatory.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
__2/1/11________________
Date
1 Complainant filed a mixed case complaint with the Agency regarding
her placement on LWOP. After the Agency issued a decision finding no
discrimination, Complainant filed an appeal with the Merit Systems
Protection Board (MSPB). On November 8, 2005, the MSPB issued a
decision dismissing the matter as moot; the MSPB determined that
Complainant had been remedied because, beginning November 19, 2003, she
had received benefits from the Office of Workers' Compensation Programs
(OWCP) in connection with her work-related medical condition. Duncan
v. Soc. Sec. Admin., MSPB Docket No. AT-0752-04-0213-B-1 (Nov. 8, 2005).
On April 7, 2006, the Commission denied Complainant's petition for review.
Duncan v. Soc. Sec. Admin., EEOC Petition No. 03A60050 (Apr. 7, 2006).
2 Complainant filed an appeal with the Commission regarding her claim
of denial of reasonable accommodation. The Commission found that the
Agency violated the Rehabilitation Act when it failed to accommodate
Complainant's disability between November 2002 and November 2003.
Duncan v. Soc. Sec. Admin., EEOC Appeal No. 01A53965 (Aug. 24, 2006).
3 In a memorandum to Complainant, the Agency stated that the
rescission was "in light of the decision" by the Commission in Duncan
v. Soc. Sec. Admin., EEOC Appeal No. 01A53965 (Aug. 24, 2006). The Agency
provided make-whole relief, including back pay and restoration of leave
and benefits.
4 In its decision, the MSPB stated that the Agency had notified the
MSPB that it did not challenge Complainant's claim of disability
discrimination and had no objection to the MSPB entering a finding
of disability discrimination in Complainant's favor based upon the
Agency's confession of error. Duncan v. Soc. Sec. Admin., MSPB Docket
No. AT-0752-06-11141-I-1 (Nov. 15, 2006).
5 Vacancy announcement number SEPSC-75-2004, open from January 8, 2004
to January 29, 2004, advertised eight vacancies for a GS-998-5 Claims
Assistant (Claims Record Technician) position. Vacancy announcement
number SEPSC-123-04, open from July 14, 2004 to August 3, 2004,
advertised eight vacancies for a GS-962-4/5/6 Contact Representative
(Debtor Contact Representative) position. Vacancy announcement number
SEPSC-38-2005, open from April 6, 2005 to April 26, 2005, advertised
two vacancies for a GS-962-5/6 Contact Representative (Debtor Contact
Representative) position. Vacancy announcement number SEPSC-67-2005,
open from August 12, 2005 to September 1, 2005, advertised two vacancies
for a GS-998-5 Claims Assistant (Claims Record Technician) position.
The report of investigation does not contain any documentation pertaining
to the vacancies for a Disability Review Clerk position. In addition,
during several periods between November 19, 2003 and October 29, 2006,
SEPSC employees in grades GS-2 through GS-12 were eligible to apply for
an 18-month development program called the Opportunities for Excellence
Program.
6 Article 26, Section 8.B.3. of the 2005 National Agreement contains
similar language:
Prior to departure, employees who are scheduled to be absent in excess
of 3 weeks should provide the SPO with a written request to be considered
for positions posted during their absence and a complete application form.
The request must cite the title, series, grade and specific organization
location for each position for which they wish to be considered.
7 Complainant contacted an EEO Counselor on November 24, 2006. According
to Complainant, she became aware of management's actions on October 30,
2006 when she returned to work and learned that several of her co-workers
had been promoted or reassigned.
8 We note that the Agency framed the issue as one claim covering the
period from November 19, 2003 to October 29, 2006. Because Complainant
was on LWOP during the initial part of the period and was not an Agency
employee during the latter part of the period, we find that the issue
is more properly framed as two claims and will refer to it as such in
this decision.
9 We note that, as a general rule, no new evidence will be considered
on appeal unless there is an affirmative showing that the evidence
was not reasonably available prior to or during the investigation.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (MD-110), at Ch. 9, � VI.A.3 (Nov. 9, 1999). Complainant has not
shown that this new evidence regarding her LWOP and termination was not
reasonably available prior to or during the investigation. Accordingly,
we decline to consider this new evidence on appeal.
10 As previously stated, we will refer to these two time periods as
claim 1 and claim 2, respectively.
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0120091768
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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