0120102979
07-12-2012
Gale Rookard, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Gale Rookard,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102979
Agency No. ATL-09-0763-SSA
DECISION
Complainant appeals to the Commission from the Agency's final decision dated June 23, 2010, finding no discrimination. For the following reasons, we AFFIRM the Agency's final decision.
BACKGROUND
In her complaint, Complainant alleged discrimination in reprisal for prior EEO activity when:
(1) On July 17, 2009, she did not receive an award for fiscal year 2008;
(2) On August 7, 2009, she was not referred for a promotion for the GS-962-09, Lead Contact Representative (Technical Assistant) position, filled under Job Announcement Number (JAN) SB-271114-09-RBS;
(3) On August 10, 2009, she received an Official Reprimand; and,
(4) She was subjected to a continuous and ongoing hostile work environment, when on August 10, 2009, management monitored and beeped into her phone call and requested that she "control the interview."
After completion of the investigation of the complaint, Complainant did not request a hearing. The Agency thus issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions in claims (1) - (3), which Complainant failed to rebut. The Agency dismissed claim (4) for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). During the relevant time period at issue, Complainant was employed as a Teleservice Representative, GS-0962-08, at the Agency's Birmingham Teleservice Center, in Birmingham, Alabama.
Claim (4):
Initially, we find that the Agency properly dismissed claim (4) since there is no evidence that Complainant was aggrieved with regard to a term, condition or privilege of her employment as a result of the alleged incident. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Specifically, there is no evidence that Complainant was issued any disciplinary action as a result of the alleged monitoring and comments about her teleservice. Furthermore, although Complainant claimed that the alleged incident constituted harassment, we do not find that the alleged isolated action was sufficiently severe or pervasive to alter the conditions of her employment such as to state a claim of harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Claims (1) - (3):
After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents described in claims (1) - (3). Specifically, with regard to claim (1), Complainant's supervisor, who had been Complainant's supervisor since July 6, 2009, stated that she did not recommend Complainant for the alleged award based on information in Complainant's "7-B" extension file and fact sheets left by her former supervisor. The supervisor stated that Complainant's "7-B" file indicated her poor job knowledge, several reports of rudeness from the public, and failure to adhere to the availability policy. Complainant's former supervisor indicated that Complainant was also placed on a Performance Assistance Plan due to her having problems in her interpretation of Agency policies.
With regard to claim (2), a Human Resources (HR) specialist stated that she reviewed the applications and qualifications of the candidates, including Complainant, and compiled the Best Qualified List (BQL) in accordance with the Agency promotion plan. The HR specialist indicated that Complainant did not make the cut-off score of 98, i.e., Complainant's score was 95, and thus Complainant was not listed on the BQL. There is no indication that the HR specialist knew of Complainant or her prior EEO activity or that the score, based on knowledge, skills, and abilities, was somehow influenced by any retaliatory animus.
With regard to claim (3), the supervisor indicated that she issued Complainant the reprimand for her failure to adhere to the Agency's availability policy on a number of occasions. Specifically, the supervisor stated that on July 8, 2009, Complainant was observed on the first floor outside of her break and lunch times. The supervisor also cited in the reprimand Complainant's former supervisor's prior oral warning and discussions about the same problems on several occasions from November 2008 to May 2009.
Upon review, we find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances. Furthermore, we find that Complainant has failed to show that the Agency's actions were motivated by discrimination as she alleged.
CONCLUSION
We AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
7/12/12
__________________
Date
2
0120102979
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102979