Linda M. Moore, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 6, 2003
01A22277 (E.E.O.C. Mar. 6, 2003)

01A22277

03-06-2003

Linda M. Moore, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


Linda M. Moore v. Social Security Administration

01A22277

March 6, 2003

.

Linda M. Moore,

Complainant,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A22277

Agency No. 00-0202-SSA

Hearing No. 120-A1-4391X

DECISION

Complainant timely initiated this appeal from the agency's final order

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The

appeal is accepted pursuant to 29 C.F.R. � 1614.405. In her complaint,

complainant alleged that she had been subjected to unlawful discrimination

on the basis of her prior participation in protected EEO activity when

(1) in July, 1999, she was questioned by the Division Director regarding

the time she arrived at work, the Division Director made derogatory,

disrespectful remarks to her in front of other employees, her manager

encouraged her to volunteer for a detail she did not want, and she

was subjected to negative comments during a meeting with the Division

Director; (2) on August 10, September 3, and September 9, 1999, she was

not selected for the position of Social Insurance Specialist, GS-105-11;

and (3) she received a Commendable Act or Service award rather than a

Recognition of Contribution award.

At the conclusion of the agency's investigation into her complaint,

complainant received a copy of the investigative report and requested

a hearing before an EEOC Administrative Judge (AJ). The AJ issued

a decision without a hearing, finding no discrimination. In her

decision, the AJ found that issuance of a decision without a hearing was

appropriate, as the record contained sufficient information upon which to

base a decision and that, examining the facts in a light most favorable

to complainant, there were no material facts in dispute. The AJ then

found that the record showed that complainant had failed to establish

a prima facie case of retaliatory harassment and disparate treatment.

The AJ further found that, even assuming complainant had established

a prima facie case of retaliatory disparate treatment as to the agency

actions complained of in claims (2) and (3), the agency had articulated

legitimate, nondiscriminatory reasons for its actions, and complainant

had failed to present any evidence which indicated that those reasons

were pretextual. The agency subsequently issued its final order, in

which it adopted in full the AJ's decision. This appeal followed, in

which neither complainant nor the agency presented any new arguments.<1>

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Further, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that

any of the agency's actions were motivated by an unlawful discriminatory

animus toward her prior protected EEO activity. Therefore, it is the

decision of the Commission to AFFIRM the agency's final order.

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

March 6, 2003

Date

1 Complainant did assert in her appeal to the Commission that �[t]his

complaint is about reprisal, harassment and handicap.� There is no

indication in the record, however, that complainant, prior to this appeal,

claimed disability as an unlawful basis for the alleged discrimination, or

that she amended her complaint to include disability as an alleged basis

for discrimination. See generally 29 C.F.R. � 1614.106(d) (describing

the procedures available to a complainant seeking to amend a complaint).