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).