0120103581
05-24-2012
Patrice Macer-Pinder, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Patrice Macer-Pinder,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120103581
Hearing No. 531-2009-00115X
Agency No. OCO-07-0450
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 2, 2010 final order concerning an equal employment opportunity (EEO) complaint claiming 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Social Insurance Specialist, GS-11, at the Agency's Office of Central Operations, Office of Disability Operations in Baltimore, Maryland.
On April 12, 2007, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On September 17, 2007, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (African-American), sex (female), age (38), disability (anemia, asthma, degenerative arthritis, heart disease, migraine headaches and tumors) and in reprisal for prior protected activity when:
1. she was denied 9.5 hours of advanced sick leave for absences on March 6, 7 and 8, 2007, and instead was charged leave without pay (LWOP) for those absences; and
2. during the period of September 5, 2004 through February 18, 2007, she was not selected for fifty-seven positions.
The record reflects that Complainant applied for twenty-four positions within the Agency's Office of Central Operations (six Social Insurance Specialist (SSI) positions, five Program Analysts (PA) positions, three Management Analyst (MA) positions, two Human Resources Specialist (HRS) positions, one Supervisory MA position, one Fiscal MA position, one Supervisory SSI position, one Administrative Specialist (AS) position, one Office of Central Operations Development Program position, one Supervisory Contact Representative position, one Management and PA position, and one Staff Assistant position).
The record further reflects that Complainant applied for one Staff Associate and two MA positions within the Office of Budget, Finance and Management. Complainant applied for three PA positions within the Office of Operations.
Complainant also applied for thirteen positions within the Office of Disability and Income Security Programs (four SIS positions, four PA positions, three MA positions, and two AS positions). Complainant applied for four MA positions, two SIS positions, and one IT Specialist within the Office of Systems. Further, Complainant applied for five SIS positions and one MA position within the Office of Quality Performance. Finally, Complainant applied for one SA position within the Office of Chief Strategic Officer.
On February 29, 2008, the Agency issued a partial dismissal. Therein, the Agency accepted claim 1 for investigation. However, the Agency dismissed claim 2 on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the Agency determined that the fifty-seven positions Complainant applied for were filled during the period of September 5, 2004 through February 18, 2007. The Agency further stated that Complainant did not initiate EEO Counselor contact until April 12, 2007, which was beyond the 45-day limitation period.
The Agency also dismissed the basis of age, finding that Complainant was under the age of forty during the period at issue, and therefore did not have standing to assert an ADEA claim. Moreover, the Agency dismissed the basis of reprisal, finding that there is no record of prior EEO activity.
Following the investigation of claim 1, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On June 29, 2010, the AJ issued a decision by summary judgment in favor of the Agency. In its August 2, 2010 final order, the Agency implemented the AJ's decision regarding claim 1.
In his decision, the AJ found that Complainant did not establish a prima facie case of race, sex and disability discrimination.1 The AJ further found that even if Complainant established a prima facie case of race, sex and disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. The AJ noted that Complainant's requests for advanced sick leave for March 6-8, 2007 were denied because of inadequate medical certifications.
Specifically, the AJ noted that Complainant was absent from work for one hour on March 6, 2007, 8 hours on March 7, 2007 and one-half hour on March 8, 2007. The AJ further noted that on March 7, 2007, Complainant sent an email to her first-level supervisor (S1) stating that she was ill, had a doctor's note, and would be seeing a specialist on March 8, 2007. Complainant informed S1 in the email that she was requesting requested advanced sick leave for the March 6 - 8, 2007 absences. The AJ noted that upon her return to work on March 8, 2007, Complainant requested advanced sick leave from S1 and provided two standard "certificate to return to work or school" forms from her doctor, both dated March 6, 2007, giving return to work dates as either March 7, 2007 or March 8, 2007. The AJ noted that neither certificate dated March 6, 2007, stated any specific restrictions or specific treatment.
Furthermore, the AJ noted that after S1 denied Complainant's requests for advance sick leave, Complainant was asked to submit additional documentation to substantiate that her absences were related to a serious health condition or illness. On March 13, 2007, Complainant submitted to S1 an additional doctor's certificate dated March 13, 2007, containing the handwritten statement "totally incapacitated for job 3/6-3/8." The AJ noted that S1 and Complainant's second-level supervisor (S2) determined that the handwritten statement on the certificate failed to adequately explain the cause of Complainant's absences. The AJ noted that S1 then informed Complainant that the denial of 9.5 hours was final and the absences would be converted to LWOP. Moreover, the AJ noted that Complainant has not provided any documentation to further substantiate the cause of her March 6 - 8, 2007 absences.
S1 stated that she was disapproved Complainant's requests for advance sick leave for March 6-8, 2007 because her request did not meet the criteria contained in the 2005 SSA-AFGE Local 1923 contract. S1 stated that instead, Complainant was charged LWOP for her absences. S1 stated that Complainant's AWOL was later changed to LWOP when Complainant "brought in documentation and requested it in writing then [S2] changed it to LWOP." Furthermore, S1 stated that Complainant race, sex and disability were not factors in her determination to deny her requests of advance sick leave.
S2 was the concurring official concerning the denial of Complainant's requests for advanced sick leave for March 6 - 8, 2007, because of the inadequacy of the medical certification submitted with the leave request forms. S2 stated that management "can grant advanced sick leave when an employee has no remaining sick leave and she submits medical documentation to establish either a serious health condition/ailment or a serious disability. The documentation [Complainant] provided did not satisfy these criteria." Specifically, S2 stated that he did not agree that Complainant's request for March 6-8, 2007 "satisfied the criteria contained in the 2005 SSA-AFGE, Local 1923 Contract, because the medical documentation she provided did not substantiate a serious health condition/illness."
Further, S2 stated "normally, Management charges AWOL [absent without leave] when an employee's documentation fails to satisfy the requirements to approve leave in a particular leave category. If [a] Manager later receives the required documentation, it will change the AWOL charge to the appropriate leave category; in this instance LWOP." S2 stated that he did not discriminate against Complainant based on her race, sex and disability.
The record contains a copy of the Article 31, Section 4 "Sick Leave" of the AFGE contract. Therein, paragraph D provides that "employees who are incapacitated for duty because of serious illness or disability may be advanced sick leave for up to 30 days. The employee will not be required to utilize any annual leave prior to utilizing the advanced sick leave. Sick leave will be advanced when the following required conditions have been satisfied: ... 5. A medical certificate substantiates that a serious illness or injury exists, and that the employee will be capable of subsequently returning to work and fulfilling the full scope of his/her job..."
The record also contains a copy of Section 3.5.1 "Serious Disability or Ailment" of the S630-3 of the Office of Personnel Policy Manual, S630-3. Therein, it provides "delegated officials (see Section 4) may advance a maximum of 30 days of sick leave (or a proportional amount for part-time employees) for a serious disability or ailment."
CONTENTIONS ON APPEAL
On appeal, Complainant states that the instant complaint "was originally filed with several issues, all of which have been resolved except for the issue of non selection promotion which we wish to be subsumed within the disability class action or the black women's class action against the agency."
ANALYSIS AND FINDINGS
Claim 1
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, 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 Agency's final order concerning claim 1, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
Partial dismissal (claim 2)
Claim (2): the bases of age and reprisal
In its February 29, 2008 partial dismissal, the Agency dismissed claim 2 on the grounds of EEO Counselor contact. The Agency also dismissed the bases of age and reprisal. 1614.103(a). The record reveals that Complainant was under 40 years of age during the period at issue. Moreover, the Agency also properly dismissed reprisal as a basis. Complainant alleged that she was discriminated against in reprisal for prior protected activity because she is the daughter of a retired module manager and those with whom she works have had contact with her mother when she worked for the Agency. However, there is no allegation that Complainant engaged in EEO or any other protected activity. When a complaint of reprisal is not based on prior EEO or other activity protected by Title VII, the complaint is not within the purview of Title VII and must be dismissed for failure to state a claim. See Bryant v. Department of Justice, EEOC Request No. 05980273 (June 4, 1999). The Commission therefore determines that the Agency properly dismissed the bases of age and reprisal
Claim (2): dismissal on grounds of untimely EEO contact on bases of race, sex, and disability
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
In its February 29, 2008 partial dismissal, the Agency determined Complainant had or should have had reasonable suspicion of unlawful employment discrimination well prior to her April 12, 2007 EEO Counselor contact and that, therefore, claim 2 was properly dismissed on the grounds of untimely EEO Counselor contact. The Commission has long held that "Commencement of a class action ... suspends applicable time limits to all asserted members of the class who would have been parties if the class had been certified," and that once there has been a "final administrative ruling on the class certification issue," the time limits for filing individual actions by rejected class member's resumes. See Mole v. Department of the Air Force, EEOC Request No. 05910578 (September 25, 1991).
We note that Complainant, on appeal, requests that the instant complaint be "subsumed within the Disability Class Action or the black Women's Class Action against the agency." We find that Complainant meets the definition of being an "asserted" member of the class who would have been a party had the class complaint been certified. In reaching this conclusion, we note the following facts: Paulette C. Taylor and Debra L. Harley filed a class complaint against the Agency on behalf of themselves and their co-workers at the Agency's headquarters in Baltimore, Maryland. Paulette C. Taylor, Debra L. Harley, et al. vs. Social Security Administration, EEOC Appeal No. 07A50060 (May 5, 2006), request to reconsider denied, EEOC Request No. 0520050801 (July 18, 2006) (Taylor, Harley). The record reflects that in its decision denying the Agency's request for reconsideration, the Commission affirmed its decision certifying the Taylor, Harley class complaint.2 The class in Taylor, Harley was certified and defined as:
all African-American females who were employed at the Agency's headquarters in Baltimore, Maryland, including employees working in the Security West and Metro West facilities, but excluding those in the Office of General Counsel and the Office of the Inspector General, in general schedule grades seven through thirteen (GS-7 through GS-13) who have not been promoted during the period of time beginning on December 9, 2000, and continuing to the date a final determination is rendered on the class complaint claim.
We find that claim 2, on the bases of sex and race, falls squarely within the definition of our Taylor, Harley decision. Therefore, we determine that Claim 2, on the bases of sex and race, is now subsumed in the Taylor, Harley class action.
However, the matter raised in Claim 2 on the remaining basis (disability) was properly dismissed on the grounds of untimely EEO Counselor contact. The record reflects that Complainant's initial EEO contact was beyond the limitation period. Complainant has not presented adequate justification pursuant to 29 C.F.R. �1614.105(a)(2), for extending the limitation period beyond forty-five days.
CONCLUSION
Regarding claim 1, the Agency's final order implementing the AJ's finding of no discrimination was proper and is AFFIRMED.
Regarding claim 2, the Agency's decision to dismiss the bases of age and reprisal was proper and is AFFIRMED. The Agency decision to dismiss Claim 2 on the basis of disability, on the grounds of untimely EEO contact is AFFIRMED. Regarding claim 2 on the bases of race and sex, the Agency's dismissal is REVERSED. Claim 2 on the basis of race and sex, is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
In regard to claim (2), the Agency is ordered to take the following action:
1. The Agency shall notify Complainant within fifteen (15) calendar days of the date this decision becomes final that claim (2) on the bases of race and sex has been subsumed in the Taylor, Harley class and in accordance with 29 C.F.R. � 1614.204(e).
2. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's actions, and a copy sent to Complainant
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
May 24, 2012
__________________
Date
1 For purposes of this analysis, we assume without finding, that Complainant was a qualified individual with a disability.
2 The Commission's records indicate that this matter remains pending before an EEOC Administrative Judge.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
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Washington, DC 20013
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