0120161322
07-25-2017
Shelia D.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shelia D.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120161322
Hearing No. 560-2014-00044X
Agency No. DAL-12-0566-SSA
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's January 27, 2016 final order concerning her equal employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Contact Representative (Service Representative), GS-8 at the Agency's Oklahoma City Field Office in Oklahoma City, Oklahoma.
On August 8, 2012, Complainant filed an EEO complaint, as amended, alleging discrimination by the Agency against her:
1. based on her race (Black), sex (female), disability (osteonecrosis-avascular necrosis and hip replacement), age (50), and national origin (Jamaican) when in May 2012, she was not selected for promotion to Social Insurance Specialist (Claims Representative), advertised under vacancy announcement number ST-629840-137-12-DAL, and received no developmental assignments that would have made her better qualified; and
2. based on reprisal for prior EEO activity when the Agency denied her representative official time to work on his case on various dates in December 2012 and January 2013.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report thereof. Days before receiving the report of investigation Complainant timely requested a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). The AJ held a hearing on issue 1 and subsequently issued a decision in favor of the Agency on issues 1 and 2.
The Agency issued its final order adopting the AJ's conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed.
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 final Agency order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven on issue 1 by a preponderance of the evidence, is supported by the record.
Prior to the hearing, the AJ granted summary judgment on issue 2 in favor of the Agency. In her decision following the hearing, the AJ explained that in response to the Agency's Motion for a Decision Without a Hearing on issue 2, Complainant through her representative stated that she agreed with the Agency's motion. The AJ found that Complainant also did not show her representative was improperly denied official time. We agree with Complainant that a determination on whether official time was improperly denied may need only rule on whether the Agency complied with Commission official time regulations, without a determination on discrimination. We also agree with the AJ's finding that Complainant was not improperly denied official time.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
July 25, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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