02a40009
07-15-2005
Agency.
Terrie K. Pearson v. Social Security Administration
02A40009
July 15, 2005
.
Terrie K. Pearson,
Grievant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 02A40009
Agency No. KC00R-006
DECISION
Pursuant to 29 C.F.R. � 1614.401(d) and � 1614.405, the Commission
accepts the grievant's appeal from the Arbitration decision in the
above-entitled matter. The grievant initiated a proceeding in accordance
with the agency's negotiated grievance procedure. The issue on appeal
is whether the grievant has established that the agency subjected
her to discrimination on the bases of sex, marital status (divorced),
race/national origin (Asian-American), association with a disabled person,
and in reprisal for filing past EEO grievances. Specifically, grievant
alleged that on January 18, 2002, the agency denied her request for a
transfer to the Alamosa, Colorado office and extension of her 30-day
detail to Alamosa.
The record reveals that during the relevant time period, grievant was
employed as a Service Representative (SR) at the agency's Trinidad,
Colorado facility. In October 2000, April 2001, November 2001, and
January 2002, grievant requested hardship transfers to the Alamosa
office. Grievant based her transfer request upon three factors: 1) the
need to care for her elderly and disabled grandmother who lived 110 miles
from Trinidad in Alamosa<0>; 2) her disabled grandmother could no longer
take care of grievant's son who lived with her; 3) grievant is a single
mother who is solely responsible for her son's well-being; and 4) grievant
suffered from physical and mental stress because of her mother's health,
daycare arrangements for her son, her absence from her grandmother and
the 220-mile weekly, sometimes daily, commute. Until finally approving
grievant's requests in May 2002, the agency denied the transfer requests.
However, the agency approved grievant's request for a 30-day detail
from December 17, 2001 to January 15, 2002 in Alamosa so grievant could
care for her grandmother who was recovering from knee replacement surgery
during that time period. Grievant requested an extension of the detail
or a transfer, but the agency only extended the detail assignment for
an additional two days and again denied her request for a transfer.
The Area II Director maintained that he denied grievant's requests because
he believed that the original reason grievant cited for requesting a
30-detail, her grandmother's knee surgery, was a temporary condition,
and the Trinidad office was understaffed and needed her services there.
The Arbitrator conducted a hearing on February 13 and 14, 2003.
On February 13, 2003, the Arbitrator orally dismissed the following
matters: 1) denial of grievant's transfer requests on October 5, 2000
and April 6, 2002; 2) transfer reconsideration requests on October 23,
2002 and November 26, 2001; and 3) denial of a request for a 120-day
detail dated July 5, 2001. In a written decision, the Arbitrator found
no discrimination with respect to the January 2002 denial of the transfer
and detail extension.
EEOC regulation 29 C.F.R. � 1614.401(d) provides that a grievant
may appeal to the Commission from a final decision of the agency,
the arbitrator, or the Federal Labor Relations Authority (FLRA) on a
grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised.
In the absence of direct evidence of discrimination, grievant's claim
is examined under the three-part analysis originally enunciated in
McDonnell Douglas Corporation v. Green. 411 U.S. 792 (1973); 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). First, grievant
must 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. Next, the
agency must articulate a legitimate, nondiscriminatory reason(s) for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). If the agency is successful, then the grievant must prove, by
a preponderance of the evidence, that the legitimate reason(s) proffered
by the agency was a pretext for discrimination. Id. at 256. Grievant can
prove pretext directly by showing a discriminatory reason more likely
motivated the agency or indirectly by showing that the agency's proffered
explanation is unworthy of credence. Id.
Grievant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Admin., EEOC
Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). Specifically, in a reprisal claim, and in accordance
with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F.Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of
Veterans Affairs, EEOC Request No. 05960473 (November 20, 1997), a
grievant may establish a prima facie case of reprisal by showing that:
(1) she engaged in protected activity; (2) the agency was aware of
the protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 25, 2000).
As an initial matter, we first find that grievant failed to state a
claim with respect to her claim that she was subjected to discrimination
based on her marital status because marital status is not a protected
class under EEO Regulations. We further find that grievant failed to
establish prima facie cases of race, sex, disability, or national origin
discrimination by demonstrating that any similarly situated individuals
not within her protected classes were treated more favorably than she,
or any other evidence from which inferences of unlawful discrimination
could be drawn.
Moreover, the agency offered legitimate, non-discriminatory reasons
for its actions, namely, that the deciding official thought that the
condition of petitioner's mother was temporary and the Trinidad office
needed her services because it was understaffed. Grievant argues on
appeal that the deciding official was influenced by a co-worker/friend,
who made crude remarks about grievant's ethnicity. However, grievant
has provided no evidence that this co-worker influenced the decision to
deny grievant a transfer or detail extension. Grievant further argues
that the deciding official possessed discriminatory animus against women
because he admitted that he would grant a transfer for a employee whose
spouse was moved to another location, but not for a parent whose transfer
was related to child care. However, while we make no judgement about
the deciding official's viewpoint, we conclude that his rationale does
not evidence sex-based discrimination. Finally, grievant argues that
management's statement that it preferred a Spanish-speaking employee
be hired next in Alamosa reflected national origin discrimination.
However, the agency official's statement was tied to a bona fide
business need to have bilingual employees in an office where 10 to 12
interviews were conducted in Spanish each day. Moreover, needing a
Spanish speaking employee is not evidence of unlawful national origin
discrimination. Consequently, we find that grievant failed to present
any persuasive evidence that the agency's legitimate, non-discriminatory
reasons for its actions were pretext for discrimination.
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the arbitration
decision because the preponderance of the evidence of record does not
establish that discrimination occurred.<0>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant 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).
GREIVANT'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
__July 15, 2005________________
Date
0 1We note that grievant considers her grandmother, who raised her from
a very early age, to be her mother.
0 2We note that we are not reviewing the Arbitrator's procedural
dismissals on February 13, 2003 because grievant does not challenge the
dismissals on appeal.