01a51328_r
12-21-2005
Regina Cofrin, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Regina Cofrin v. Social Security Administration
01A51328
December 21, 2005
.
Regina Cofrin,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A51328
Agency No. 00-0008-SSA
Hearing No. 160-A3-8183X
DECISION
Complainant initiated contact with an EEO Counselor on May 11, 1999.
On September 2, 1999, complainant, a Claims Representative, GS-11, filed
a formal EEO complaint in which she claimed that the agency discriminated
against her in reprisal for her previous EEO activity when she was denied
certain assignment rotations and work details. Complainant also claimed
that she was denied reimbursement of travel expenses for a meeting with
her representative and the EEO Counselor.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request
for a hearing. Without holding a hearing, the AJ issued a decision
ordering Summary Judgment in favor of the agency. The AJ found that
complainant was untimely in her contact of an EEO Counselor with respect
to her claim of being denied opportunities to rotate in 1996, 1997 and
1998, and also as to her claim that she was restricted to interviewing
since 1996. The AJ found that even if complainant's claims had been
timely, complainant failed to raise an inference of reprisal as the
record indicates that rotations and job assignments were made pursuant
to the operational needs of the agency and that complainant was given
desired rotations, assignments and awards. The AJ found that complainant
failed to proffer any evidence to show that any employment action was
a consequence of her participation in a prior EEO protected activity.
With regard to complainant's claim that management refused to rotate her
from interviewing to the Stieberger cases after October 1998, the AJ
found that complainant failed to state a claim. As for complainant's
claim that she was denied reimbursement of $13.50 in travel expenses,
the AJ found that the travel expenses were not reimbursable especially
in light of the fact that complainant was not directed by the agency to
travel to the off-site location to meet with her representative or the
EEO Counselor.
On October 22, 2004, the agency issued a final order adopting the AJ's
decision.
On appeal, complainant contends that she has made timely claims with
regard to her being restricted to interviewing since 1996 and from
October 1998 through April 1999, as management refused to rotate her from
interviewing to the Stieberger cases on a continuing basis, including
during the 45-day period prior to her contact of an EEO Counselor on
May 11, 1999. Complainant argues that she wanted assignment to priority
workloads so that she could earn higher awards and possible promotional
opportunities. Complainant maintains that she is entitled to $13.50 in
travel costs that she incurred when she and her representative met with
the EEO Counselor at an off-site location. Complainant states that the
same AJ required the agency to pay her travel expenses in an earlier
complaint where she and her representative met with an EEO Counselor at
the same off-site location.
In response, the agency asserts that the AJ correctly found that certain
claims were untimely because complainant did not contact an EEO Counselor
until May 11, 1999, more than 45 days after the alleged discriminatory
conduct occurred. The agency maintains that complainant has not
identified any incident that occurred within 45 days of contacting
an EEO Counselor or stated how she was harmed. The agency asserts
that complainant failed to identify any particular term, condition or
privilege of employment that she was denied when since October 1998,
management allegedly refuse to rotate her from the interview function
to the Stieberger cases. Moreover, the agency asserts the rotations
and job assignments were made pursuant to the operational needs of the
agency and that complainant was given desired rotations/assignments
and awards. With regard to complainant's travel expenses, the agency
argues that denial of reimbursement was consistent with EEO Regulations
as travel expenses are not reimbursable for complainants to confer with
their representatives, especially in light of the fact that complainant
was not directed by the agency to travel to the location to meet with
her representative or the EEO Counselor.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
See Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases);
For complainant to prevail, she must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community 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 (2000).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
With respect to complainant not being rotated to the Stieberger cases
and being restricted to interviewing during the period that was more
than 45 days prior to her initial EEO Counselor contact on May 11,
1999, we find pursuant to 29 C.F.R. �1614.107(a)(2) that complainant
failed to initiate contact with an EEO Counselor in a timely fashion.
As for the 45-day period prior to complainant's initial EEO contact,
the Operations Supervisor stated that complainant requested in April
1999 to be trained and to work on the adjudication of Stieberger cases
after they were released by the state agencies. We will assume arguendo
that complainant has set forth a prima facie case of reprisal with regard
to the denial of this request. According to the Operations Supervisor,
there was not sufficient volume in such cases. The Operations Supervisor
stated that the two claims representatives assigned to the Stieberger
cases were able to handle the workload without assistance from the other
claims representatives. The Operations Supervisor stated that complainant
was not chosen to be one of the original claims representatives to be
trained because of her lack of independence and inability to move work
as quickly as those who were chosen. Complainant was assigned to the
Stieberger cases in May 1999. According to the Operations Supervisor,
complainant was trained to do back-end adjudication of Stieberger cases
in May 1999, after there was an influx of back-end cases. We find that
the agency articulated legitimate, nondiscriminatory reasons for not
rotating complainant to the Stieberger cases in April 1999.
Complainant claims that she should have received rotation to the
Stieberger cases and this would have enabled her to have been considered
for higher awards and promotional opportunities. We find that complainant
has not refuted the agency's position that she was not provided training
and work on the Stieberger cases until May 1999, due to her lack of
independence and inability to process work as quickly as those claims
representatives who were selected. We find that complainant has not
established by a preponderance of the evidence that the agency's stated
reasons were pretext intended to mask discriminatory motivation.
With regard to the reimbursement of complainant's travel expenses, we
find that under 29 C.F.R. �1614.605, the agency is not obligated to incur
travel expenses to facilitate a complainant's choice of representative
or to allow complainant and her representative to confer. There is no
indication that the agency directed complainant and her representative to
meet with the EEO Counselor at an the off-site location. We therefore
find that complainant is not entitled to reimbursement for the travel
expenses that she incurred.
The Commission AFFIRMS 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
December 21, 2005
__________________
Date