0120063811
02-02-2009
Rosemary Jimenez, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Rosemary Jimenez,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200638111
Hearing No. 120-2005-00645X
Agency Nos. 04-0303-SSA, 04-0401-SSA
DECISION
On June 12, 2006, complainant filed an appeal with this Commission
from the April 28, 2006 Prehearing Memorandum and Order of an EEOC
Administrative Judge (AJ). In a Dismissal Order, dated May 3, 2006,
the AJ dismissed complainant's request for hearing and remanded the
matter to the agency for issuance of a decision. In a July 11, 2006
decision, the agency determined that the agency had not discriminated
against complainant.2
Complainant alleges discrimination under Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Equal Pay Act of 1963, as amended,
29 U.S.C. � 206(d) et seq.
Specifically, complainant, a grade level GS-12 Budget Analyst, filed
two discrimination complaints (C-1 and C-2) which were consolidated.3
In Agency No. 04-0303-SSA (C-1), complainant alleged that the agency
discriminated against her on the bases of race (Hispanic),4 color (olive),
sex (female), age (50) national origin (Mexican-American), religion
(Catholic), disability (rhino-allergic sinusitis, temporal mandibular
jaw disorder (TMJ), lingual nerve damage, lower back/left hip problems,
vision, allergies and bursitis), marital status (single), parental status
(non-parent), and in reprisal for prior EEO activity when:
1. On February 6, 2004, complainant learned she would not receive a
performance award.
2. Complainant continued to be denied training, including training related
to the Career Opportunities Training Agreement (COTA) which was available
to new Budget Analysts.
3. Complainant was suspended from employment from March 15, 2004,
through March 28, 2004.
4. Complainant was not promoted to the following positions: (a) Lead
Budget Analyst, GS-560-14, under Vacancy Announcement No. V-343, (b)
Budget Analyst, GS-560-13, under Vacancy Announcement No. V-344, and
(c) Budget Analyst, GS-560-13 under Vacancy Announcement No. V-345.
5. On April 7, 2004, complainant discovered that she had not been issued
a copy of the FY 2006 SSA Technical Administrative Budget Development
Manual and complainant's Team Leader and the Team Leader responsible for
distributing the document refused to disclose who had been responsible
for the distribution of the document.
6. On April 7, 2004, complainant noted that there were no career
advancement fairs directed toward Mexican-Americans, Hispanics, and
persons with disabilities while the agency was participating in an Asian
Pacific American Federal Career Summit.
7. Management made changes to OMB (Office of Management and Budget)
Exhibit 54 budget estimate submission without sharing the changes or
the need for the changes with complainant.
In Agency No. 04-0401-SSA (C-2), complainant alleged that she was
discriminated against on the same bases as those identified in C-1.
Complainant specifically alleged:
1. Complainant was not selected for the positions of: (a) Management
Analyst, GS-343-13 under Vacancy Announcement No. O-3498, (b) Management
Analyst, GS-343-13 under Vacancy Announcement No. O-3500, (c) Program
and Management Analyst, GS-343-13 under Vacancy Announcement No. U-416,
(d) Budget Analyst GS-560-13 under Vacancy Announcement No. V-340, and
(e) Budget Analyst GS-560-13, under Vacancy Announcement No. V-342.
2. Complainant was denied the opportunity to compete for a temporary,
120-day promotion to Budget Analyst, GS-560-13.
3. Complainant was discriminated against concerning time and attendance
when: (a) her requests for overtime and compensatory time were denied
on April 30, 2004, and May 12 to May14, 2004; (b) she was denied use of
official time for one hour on May 18, 2004, and charged absence without
leave (AWOL) and was also charged with AWOL several times between June
2, 2004, to June 8, 2004; (c) complainant was denied official time to
participate in the prosecution of her EEO complaints; (d) complainant's
request for sick leave for August 23-27, 2004, was denied.
4. Complainant was placed on a Performance Assistance Plan (PAP) on May
19, 2004.
5. Complainant was subjected to a hostile work environment when:
(a) her April 30, 2004 request to be provided with hard and/or soft
copies regarding the Office of Budget's collection and analysis of data
was not granted; (b) complainant's supervisor unnecessarily scheduled
meetings with complainant on increasingly short notice; (c) management
routinely ignored complainant's requests for job-related information;
(d) on July 9, 2004, complainant discovered a conference related to her
budget area to which she had not been invited to attend; (e) on May 12,
2004, complainant's supervisor instructed her to insert erroneous data
into her rent budget analysis and in the ensuing discussion, complainant's
supervisor spoke disrespectfully to complainant while pointing her finger
directly at complainant's face six inches away and a ball point pen less
than 12 inches from complainant's face; (f) complainant's Team Leader
failed to provide complainant with essential information relating to an
apportionment involving a Delegations budget account then requested that
complainant complete a one-day deadline assignment on April 8, 2004; and
(g) during meetings on June 24, 2004, and June 30, 2004, complainant's
supervisor berated and belittled complainant's work performance.
6. Complainant's request to attend the "Effective Executive Speaking"
course was denied on May 20, 2004.
7. Complainant was not paid equally for performing work equivalent to
that performed by a senior GS-13 Budget Analyst.
8. Complainant was not selected for the CASA (Commendable Act or
Service)/OTS (On-The-Spot) awards issued within the Office of Budget on
June 18, 2004.
9. On May 18, 2004, complainant's supervisor issued complainant a Note for
the Record which addressed her performance and included as background a
narrative which may have been written by a Human Relations Specialist and,
further, the Note for the Record related to her allegedly disrespectful
and uncooperative behavior during meetings with Human Resources staff
in the Office of Personnel on April 12, 2004, and April 15, 2004.
10. Complainant was not selected for Budget Analyst under Vacancy
Announcement Nos. V-344 and V-345.
11. Complainant's right to privacy under the Privacy Act was violated.
12. Complainant was denied training.
13. Complainant was denied workers' compensation benefits.
14. Complainant was denied unemployment compensation benefits.
Complainant requested a hearing before an AJ in June 2005. As stated
earlier, the AJ dismissed complainant's request for hearing and remanded
the matter to the agency for a decision.
Procedural Dismissal of Claims 5, 6, and 7 in C-1
In its July 7, 2004 dismissal/acceptance letter for C-1, the agency
dismissed claims 5 through 7 for failure to state a claim pursuant to
29 C.F.R. � 1614.107(a)(1), noting that complainant had failed to show
that she had suffered a harm to a term, condition, or privilege of her
employment. In a Memorandum and Order Regarding Complainant's Motion for
Further Investigation and Appeal to Reinstate Dismissed Issues, the AJ
upheld the agency's dismissal of claims 5 and 6 and reversed the agency's
dismissal of claim 7. Regarding claim 5, the AJ found that complainant
did not suffer any harm because complainant's Team Leader had given her
a copy of the Technical Administrative Budget Development Manual shortly
after learning that the agency had failed to issue her a copy. Regarding
claim 6, the agency similarly found that complainant did not suffer any
harm because she already worked for the agency. Regarding claim 7,
the AJ noted that claim 7 was part of complainant's overall claim of a
pattern of harassment and a hostile work environment alleged in C-2.
Procedural Dismissals of Claims 1(d), 10, 11, 12, 13, 14 of C-2
In a September 28, 2004 dismissal/acceptance letter, the agency dismissed
claims 10 through 14 of C-2. Claims 10 and 12 were dismissed on the
grounds that they stated the same claim raised in another complaint.
The agency stated that claim 10 was the same claim as claim 4 in C-1
and claim 12 was the same claim filed in Agency Nos. 04-0023-SSA and
03-0367-SSA. The agency dismissed claims 11, 13, and 14 on the grounds
that they failed to state a claim.
In a February 17, 2005 amended dismissal/acceptance letter, the agency
dismissed claim 1(d) of C-2 on the grounds that it stated the same claim
that complainant had raised in Agency No. 04-0023-SSA.
Agency's Finding of No Discrimination
Disability Claim
In its decision, the agency found complainant failed to establish that she
was disabled, noting that while complainant listed several impairments,
she failed to establish how any of the impairments limited a major life
activity. The agency noted that although requested by the investigator,
complainant failed to provide any medical documentation regarding her
alleged impairments. The agency noted that there was only a brief note
in the record, indicating that complainant had TMJ and had to use sick
leave at times. The agency also found that complainant had failed
to show that she was regarded as disabled. The agency noted further
that although complainant's supervisor stated that she was aware that
complainant claimed to have several impairments, complainant did not
provide her with any medical documentation.
Denial of Awards (C-1, claim 1; C-2, claim 8)
Regarding claim 1 of C-1, the agency found that complainant failed to
establish a prima facie case, noting that complainant's supervisor did
not recommend any performance awards for any GS-12 employees under her
supervision and that the one employee under her supervision who received
an award received the award for work performed while the employee was in
a different unit and working under another supervisor. Regarding claim
8 of C-2, the agency noted that employees could be nominated by anyone,
including him or herself; that complainant's supervisor did not recommend
complainant because of her performance; and that complainant had not
shown that any other employee was nominated while on a PAP.
Training (C-1, Claim 2; C-2, Claim 6)
Complainant alleged that she was denied COTA training. The agency
noted that complainant's supervisor and others stated that complainant
was not qualified for COTA training because she was a GS-12 employee.
The agency found that complainant failed to show that any other GS-12
employee was provided with COTA training. The agency found also that
during the relevant time period, complainant was provided with training
equivalent to that of other GS-12 employees.
Regarding the "Effective Executive Speaking" course (C-2, claim 6), the
agency found that the course was geared to executives with prior public
speaking experience and, also, that because complainant had difficulty
with basic performance in her position, complainant's supervisor felt that
a Briefing Techniques course would be more appropriate for complainant and
would be of greater benefit to her. The agency noted that training was
part of complainant's PAP and that complainant's supervisor had identified
courses she believed would help complainant in performing her duties.
Suspension (C-1, Claim 3)
Regarding her 14-day suspension in March 2004, the agency found
that complainant had failed to show that any similarly situated
individuals were treated differently. The agency further found that
complainant was suspended because of her continued uncooperative and
unprofessional behavior in the workplace and her failure to follow work
related instructions. The agency noted that complainant's supervisor
identified instances of complainant's inappropriate behavior beginning in
July 2003, when complainant refused to attend scheduled meetings regarding
assignments of due dates or to inform management that she would be absent;
when complainant failed to complete assignments; when complainant failed
to complete tasks and obey a direct order; when complainant exhibited
discourteous behavior toward management officials; and when complainant
refused to discuss work assignments with management. The agency also
found that complainant undermined supervisory authority by her actions
and that her insubordinate conduct was not isolated but was continuing.
Nonselection/promotion claims (C-1, claim 4; C-2, claims 1, 2)
Regarding her nonselection for the V-343, GS-14 position (C-1, claim
4(a)), the agency found that because complainant was not qualified
for the position, she could not establish a prima facie case. In so
finding, the agency noted that to be considered for the GS-14 position,
complainant was required to have been a GS-13 for 52 weeks and possess the
knowledge required at the GS-13 level. The agency found that complainant
had provided no evidence that she ever occupied a GS-13 position.
Regarding her nonselection to the GS-13 V-344 and V-345 positions (C-1,
claims 4(b) and 4(c)), the agency found that because complainant made
the best qualified lists for the two positions, she had presented a
prima facie case. The agency found further that it had articulated a
legitimate, nondiscriminatory reason for its actions, i.e., the selectees
were chosen based on their budget and field experience and their clear,
logical and well-organized presentations. The agency also noted that
complainant was having difficulty performing at the GS-12 level.
Regarding her nonselection to VAN O-3498 and O-3500 (C-2, claims 1(a) and
1(b)), the agency noted the uncontradicted statements of the selecting
officials that they did not know complainant, had not met her, and had
never had a conversation with her. The agency noted that the selecting
officials determined that the selectees had excellent qualifications and
the agency provided detailed reasons for their selections. The agency
also noted that although complainant alleged that OB management derailed
her opportunities for promotion outside and within OB, she failed to
provide supporting evidence.
Regarding VAN U-416 (C-2, claim 1(c)), the agency determined that
the vacancy announcement was canceled for reasons relating to full
time equivalents. The agency found management articulated legitimate,
non-discriminatory reasons for its actions, which complainant failed to
show were a pretext for discrimination.
Regarding her nonselection to VAN -342 (C-2, claim 1(e)), the agency noted
that the selectee was chosen by the recommending and selecting officials
because she was a former Presidential Management Intern, had excellent
budget, communication and interpersonal skills, and had conducted complex
analyses which were accurate, well-organized and logically presented.
The agency also noted that the recommending and selecting officials did
not recommend complainant because of her performance deficiencies.
In its decision, the agency also addressed two temporary grade level
13 positions which were not announced and for which complainant was
not selected (C-2, claim 2). The agency reasoned that temporary
promotions were discretionary actions which managers could take and
there was no requirement that temporary promotions be advertised or
open to competition. The agency also noted that the non-competitive
promotion was in accord with the union agreement and that the Associate
Commissioner explained why he had selected the two individuals.
The agency noted the affidavit of the Associate Commissioner who therein
stated that the process followed in making temporary promotions was
a normal business practice that was approved by the Agency's National
Agreement with the union. The Associate Commissioner also stated that
once a position which had to be filled became available and management
determined to fill it on a temporary basis, his managers identified
candidates whose experience and excellent performance made them good
candidates for a temporary promotion and that this was a way to reward
excellent performance and at the same time allow management to evaluate
an employee's readiness for promotion. The Associate Commissioner stated
that there were two Budget Analyst, GS-13, temporary promotions that were
filled non-competitively, one with the State Disability Determinations
staff and the other a position that provided oversight to staffing and
payroll calculations for the Agency. He noted that the two employees who
were temporarily promoted were recommended by their supervisors and/or
by senior analysts and team leaders who worked with them. The Associate
Commissioner also noted that both employees had strong analytical ability,
worked well with others, and could prepare organized and understandable
work products.
Time and Attendance (C-2, claim 3)
Regarding complainant's allegation of denial of overtime and compensatory
time (C-2, claim 3(a)), the agency noted that on March 2, 2004,
complainant worked overtime without obtaining approval in advance, and
although the overtime was subsequently approved, complainant was reminded
of the requirement to receive approval in advance. The agency also noted
that on April 30, 2004, complainant again worked unauthorized overtime
and was given a direct order on May 4, 2004, not to work either overtime
or compensatory time without obtaining prior approval. The agency noted
further that complainant worked unauthorized overtime on May 12, May 13,
and May 14, 2004, and her overtime was not approved.
Regarding her claims of denial of official time and sick leave and being
charged AWOL, the agency found that complainant failed to show she was
denied a reasonable amount of official time or that the agency had acted
improperly in charging her AWOL for her failure to request official time
in advance as required by agency policy. In her affidavit, complainant's
first line supervisor stated that in 2003, she told complainant to
keep her informed about EEO matters in which she was involved so work
could be appropriately scheduled. Complainant's supervisor noted
that on January 9, 2004, she directed complainant to provide written
requests for official on EEO matters in advance to allow a decision
to be made on the requests and informed complainant that failure to
submit appropriate written requests could result in a charge of AWOL.
Complainant's supervisor noted that on May 18, 2004, a meeting had
been scheduled with complainant at 10:00 a.m. The supervisor noted she
went by complainant's desk at 9:00 a.m. and complainant was not there.
The supervisor stated that complainant called the office at 10:10 a.m.,
stating that she had been attending a deposition of an agency official
at 9:00 a.m. Complainant's supervisor stated complainant was charged
AWOL from 9:00 a.m. - 10:00 a.m. because she failed to provide sufficient
advance information regarding the date and the time for the deposition.
Additionally, complainant's supervisor stated that she learned that
the scheduled deposition did not occur. Complainant's supervisor also
stated 32.5 hours of official time was denied for the period of June 2,
to June 8, 2004, since complainant did not follow procedures to request
official time in advance.
Regarding AWOL charges in August 2004, the agency noted that complainant
did not have any leave available and although she was provided information
on how to request advance leave, she did not follow the process.
The agency noted that because complainant's medical documentation did not
cover the entire period of her absence in August 2004, she was charged
AWOL for the days not covered in her physician's notes. The agency noted
further that complainant's supervisor advanced complainant sick leave
for the period covered in her physician's notes and had also provided
her with an opportunity to provide sufficient medical documentation but
that complainant failed to provide the documentation.
Placement on PAP (C-2, claim 4)
In its decision, the agency found that complainant was the only
employee placed on a PAP but that complainant had not shown that other
employees with the same performance difficulties were not placed on PAPs.
The agency determined that complainant was placed on a PAP because her
performance was substandard and she had difficulty meeting deadlines.
The agency also noted that complainant's supervisor had informed her
that she needed to meet with her on a regular basis to discuss her
performance so that she would not have to place complainant on a PAP but
that complainant told her supervisor to proceed and place her on a PAP.
Hostile Work Environment (C-2, Claim 5)
After addressing each of the alleged incidents at length in its decision,
the agency concluded that complainant failed to show that any of the
actions taken were as a result of complainant's membership in a protected
group. The agency also concluded further found that none of the actions,
considered either severally or jointly, constituted conduct so severe
and pervasive so as to have created a hostile work environment.
Unequal Pay Claim (C-2, Claim 7)
Complainant alleged that a male employee performing the same work
as she was being paid at the GS-13 level. The agency concluded that
complainant failed to show that her job constituted work equal to the male
comparative. The agency found that some of the same budget functions
were performed by employees in the same positions but at different
grade levels. The agency also found that the scope of responsibility,
independence, and complexity of work determined grade level. In so
finding, the agency noted the statements of complainant's supervisor
that the male comparative's responsibilities covered a large staff
organization with significant duties for preparing the budget for the
Deputy Commissioner for Finance, Assessment and Management. Regarding the
female comparative and the male comparative, complainant's supervisor
stated that both were required to conduct significant and independent
analysis and that, by contrast, complainant's responsibilities were
less detailed, at a lower level, and did not require the level of
independence and analysis required at the GS-13 level. The agency
also noted the supervisor's statement that even at the GS-12 level,
complainant struggled with simple assignments which required little
analysis and often requested and required very detailed instructions to
finish her work, which then required significant revision.
Note for the Record (C-2, Claim 9)
Complainant alleged that her supervisor failed to adequately investigate
incidents that occurred in April 2004, concerning complainant's meeting
with an HR Specialist before her supervisor issued complainant the May
18, 2004 Note for the Record. The HR Specialist's April 16, 2004 Note
for the Record was attached to the May 18, 2004 Note for the Record
received by complainant from her supervisor. The agency noted the
affidavit of complainant's supervisor in which she stated that she was
told that complainant exhibited aggressive and inappropriate behavior
when complainant went to review her Official Personnel File on April
12, 2004, and during another meeting in which complainant met with HR
staff on April 15, 2004. The agency identified the statement of the HR
Specialist which is contained in the record and which contains the HR
Specialist's account of what occurred.
The agency concluded that complainant's supervisor had no reason to doubt
the report provided by the HR office and that complainant had not shown
that either the HR Specialist or her supervisor held any discriminatory
animus towards complainant.
ANALYSIS, FINDINGS AND CONCLUSIONS
The Commission notes that because this is an appeal from a decision
issued without a hearing, the agency's decision is subject to a de novo
review by the Commission. See 29 C.F.R. � 1614.405(a).
As an initial matter, the Commission first addresses the ripeness of
complainant's appeal and the timeliness of the agency's decision.
Complainant filed an appeal of the AJ's April 28, 2006 Prehearing
Memorandum and Order on June 12, 2006. The agency contends that
complainant's appeal was premature. We agree. Because the Prehearing
Memorandum and Order was an interim order, complainant's appeal was
premature. The Commission regulations do not provide for review of an
AJ's interlocutory decision.
In an August 3, 2006 EEO Advocate/Complainant's Motion to Deny Agency's
Untimely Final Decision & Request to Dismiss Appeal, complainant
contends that the July 11, 2006 agency decision was untimely because it
was not issued within 40 days of receipt of the AJ's May 3, 2006 Order
of Dismissal. The AJ, as indicated earlier, dismissed complainant's
request for hearing and remanded the matter to the agency for issuance
of a decision pursuant to 29 C.F.R. � 1614.110. The AJ dismissed the
request after finding that complainant failed to participate in the
hearing process by not complying with his orders requiring her submission
of necessary information concerning her complaint.5 Complainant asserts
that the agency should have issued its decision by June 6, 2006, pursuant
to the 40-day requirement of � 1614.110 and that as a sanction against
the agency, the Commission should draw an adverse inference against
the agency. Complainant has provided no support for imposing the 40-day
requirement in a case such as this where there has been no dismissal,
pursuant to � 1614.107, by the AJ or where the AJ did not address the
merits of complainant's claim. In the absence of any such decision,
there would be nothing for the Commission to review.
Accordingly, the Commission will treat complainant's submissions on
appeal as having become ripe for adjudication once the agency issued
its decision. See Patterson v. Department of the Air Force, EEOC Appeal
No. 0120061872 (May 10, 2007).
The Commission next addresses complainant's motion for sanctions against
the agency and for the permanent removal of the AJ. The record does
not support sanctioning the agency. The record also does not support
a finding that the AJ abused his discretion during the pendency of the
hearing request. The record supports the AJ's dismissal of the request
for hearing and his remand to the agency for a decision. The record
evidences complainant's lack of cooperation in adhering to orders and
disrespect exhibited toward the AJ and counsel during proceedings before
the AJ.
Regarding the bases of discrimination identified by complainant,
the Commission finds that the AJ's dismissal of marital and parental
status as bases of discrimination was proper. The Commission has
no jurisdiction over claims of marital status and parental status
discrimination. The Commission only has authority over federal sector
complaints of discrimination on the bases of race, color, religion, sex,
national origin, age, disability or reprisal. See 29 C.F.R. �� 1614.103,
1614.106(a); Lee v. United States Postal Service, EEOC Appeal No. 01965341
(September 4, 1998). Accordingly, the Commission will not address these
bases of alleged discrimination.
The Commission next addresses the procedural dismissals of claims 5,
6, and 7 in C-1. The Commission finds that, considered individually,
claims 5 and 7 do not state a claim but can be considered as part of
the overall claim of a hostile work environment. Because the record
contains evidence addressing dismissed claims 5 and 7, we find the
dismissal harmless under the circumstances of this case. Regarding the
dismissal of claim 6 in C-1, the Commission agrees that the allegation
concerning career fairs fails to state a claim because complainant
has failed to show how she suffered a personal loss or harm to a term,
condition or privilege of her employment. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). To state a
claim under our regulations, an employee must allege and show an injury
in fact, a direct, personal deprivation at the hands of the employer.
Here, complainant has not shown such a personal deprivation or injury
for which relief can be provided.
To the extent that complainant may be claiming that the agency's actions
in holding career fairs had a disparate impact because they excluded some
protected groups, the Commission notes that to establish a prima facie
case of disparate impact, complainant must show that an agency practice
or policy, while neutral on its face, disproportionately impacted members
of the protected class. This is demonstrated through the presentation
of statistical evidence that establishes a statistical disparity that is
linked to the challenged practice or policy. Watson v. Fort Worth Bank &
Trust, 487 U.S. 977, 994 (1988) (complainant must present "statistical
evidence of a kind and degree sufficient to show that the practice in
question has caused the exclusion"). Specifically, complainant must:
(1) identify the specific practice or practices challenged; (2) show
statistical disparities; and (3) show that the disparity is linked
to the challenged practice or policy. Id.; Obas v. Department of
Justice, EEOC Appeal No. 01A04389 (May 16, 2002). The burden is on
the complainant to show that "the facially neutral standard in question
affects those individuals [within the protected group] in a significantly
discriminatory pattern." Dothard v. Rawlinson, 433 U.S. 321, 329 (1977);
see also Gaines v. Department of the Navy, EEOC Petition No. 03990119
(August 31, 2000). A "bottom line" disparity is not sufficient. Here,
complainant has not demonstrated that a statistical disparity existed
which is linked to the challenged agency practice or policy.
The Commission next addresses the dismissal of claim 1(d) and claims 10
through 14 in C-2 and finds that they were properly dismissed.
Regarding claim 1(d), we note that in EEOC Appeal No. 0120055577
(February 23, 2007), concerning Agency Nos. 03-0367SSA and 04-0023-SSA the
Commission already addressed complainant's nonselection for the Budget
Analyst position advertised under Vacancy Announcement V-340. Further,
we note complainant has not disputed the agency's conclusion that she
raised the same claim as in Agency No. 04-0023-SSA. Regarding claim 12,
the record reveals that in EEOC Appeal No. 0120055577, concerning Agency
Nos. 03-0367SSA and 04-0023-SSA, the Commission addressed complainant's
claim that she was denied specific training opportunities between April
2003, and October 2003. We note complainant has not refuted the agency's
assertion that the claim 12 concerns the same claim as that raised in
Agency Nos. 04-0023-SSA and 03-0367-SSA. Moreover, the Commission notes
that in Bay v. United States Postal Service, EEOC Appeal No. 01975604
(April 28, 1998), an allegation regarding training that lacked specificity
was dismissed for failure to state a claim. Further, we find that claim
10 in C-2 concerns the same nonselections/promotions addressed in claim
4 in C-1.
Claims 11, 13, and 14 which allege a violation of the Privacy Act and
denial of workers' compensation and unemployment compensation benefits
are outside the Commission's jurisdiction and therefore fail to state
a claim, pursuant to 29 C.F.R. � 1614.107(a)(1), for which relief can
be granted. Privacy Act allegations are not within the Commission's
purview. See Bucci v Department of Education, EEOC Request Nos. 05890289,
05890290, 05890291 (April 12, 1989) (allegation of Privacy Act violation).
The proper forum for complainant to raise challenges to actions which
related to the workers' compensation process is within the Office of
Workers' Compensation Programs' process.6 The Commission has held that
an employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. See Wills v. Department of Defense, EEOC
Request No. 05970596 (July 30, 1998); Fisher v. Department of Defense,
EEOC Request No. 05931059 (July 15, 1994) (challenge to unemployment
compensation process fails to state a claim as an EEO complaint).
Having addressed the procedural dismissals, the Commission next considers
the agency's ultimate finding of no discrimination. We find that the
record is adequately developed such that a fact finder can determine
whether discrimination occurred.7 We find next that the agency has
articulated legitimate, nondiscriminatory reasons for its actions. Where,
as here, the agency has articulated legitimate, nondiscriminatory reasons
for its actions, a prima facie inquiry is not necessary. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 256 (1981). Complainant has failed to show
by a preponderance of the evidence that the agency discriminated against
her and that any of the agency's actions was motivated by discriminatory
animus. Further, complainant has not shown that the agency's reasons
for its actions were mere pretext to hide unlawful discrimination.
Regarding her disability, complainant's affidavit reveals that she
stated that she informed various management officials, team leaders,
a custodial worker and co-workers about her TMJ, muscular headaches
and arthritic pain, lingual nerve damage, her back and hip problems,
her need for ergonomically correct office furniture, and her allergies
and allergic sensitivities.
Regarding medical documentation, the record contains only a short June 3,
2004 "To Whom It May Concern" letter from a dentist in which he stated
that complainant had been asked to provide medical documentation for her
recent use of sick leave on May 21 and May 27, 2004; that complainant was
currently under his care for the treatment of TMJ; that her condition had
improved since she began treatment; and that stressful work situations
could counteract the effects of treatment. The dentist also noted
that prior to beginning treatment, complainant reported that she had
used an extensive amount of sick leave in order to deal with chronic
pain problems. In an electronic mail message, dated February 25, 2005,
to the investigator, complainant's supervisor stated that she was aware
that complainant had listed several medical conditions as a basis for
her complaints but that she had not seen medical documentation regarding
the alleged disabilities other than the dentist's letter concerning
complainant's TMJ.
In the instant case, we will assume, without finding and for the sake
of argument, that complainant is an individual with a disability under
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. Nonetheless, even assuming that complainant is disabled,
the evidence in the record is insufficient to support a finding that any
of management's actions towards complainant were based on her disability
or that the agency's reasons for its actions were pretextual.
Regarding her several claims and without addressing each individually
because they are already addressed in the agency decision, the record
discloses that complainant did not receive performance awards and
was placed on a PAP because of her poor performance at work; that she
received appropriate training and was denied training which was not
appropriate for her grade or which would not improve her performance;
that she was not selected for positions or promotions because she was not
the best choice based on the judgment of selecting officials, or she was
not qualified for the grade level of the promotion; that her supervisor
issued complainant a Note for the Record and she was suspended because of
her continuing misconduct and insubordination; and that she was charged
AWOL, denied sick leave, and not given overtime, compensatory or official
time because she failed to adhere to time and attendance rules and rules
for requesting leave approval. The Commission has recognized that the
agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Burdine, Id. at 259. There is
also no preponderant evidence to support a finding that complainant was
subjected to a discriminatorily hostile work environment.
The agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
February 2, 2009
__________________
Date
1This appeal, formerly 01A63811, has been re-designated with the
above-referenced appeal number.
2 Hereinafter, the Commission will address arguments about the ripeness
for adjudication of complainant's appeal and the timeliness of the
agency's decision.
3 Complainant was terminated in November 2004.
4 We note that under the laws enforced by the Commission, the term
"Hispanic" denotes a national origin rather than a race.
5 The AJ identified instances of what he described as contumacious
conduct by complainant but declined dismissal of the complaint and,
instead, dismissed the hearing request.
6 The Commission recognizes that an allegation of a violation of the
agency's ongoing duty to provide reasonable accommodation under the
Rehabilitation Act states a viable claim that can be processed in the
EEO process.
7 We note that the AJ ordered a supplemental investigation which was
conducted.
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0120063811
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120063811