Stephanie R. Clark, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 30, 2006
01a60705_r (E.E.O.C. Mar. 30, 2006)

01a60705_r

03-30-2006

Stephanie R. Clark, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


Stephanie R. Clark v. Social Security Administration

01A60705

March 30, 2006

.

Stephanie R. Clark,

Complainant,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A60705

Agency No. 02-0183-SSA

DECISION

Complainant appeals to the Commission from the agency's decision dated

September 30, 2005, finding no discrimination. In her complaint,

complainant alleged discrimination based on disability when she was not

converted to a permanent position or promoted to the position of Senior

Case Technician. Complainant also alleged that management mishandled

her career because she had not been promoted to a permanent position

and that in a telephone conversation with management on September 6,

2001, management requested that she return to work. The agency, in

its decision, concluded that it asserted legitimate, nondiscriminatory

reasons for its actions, which complainant failed to rebut.

After a review of the record, the Commission, assuming arguendo that

complainant had established a prima facie case of discrimination, finds

that the agency has articulated legitimate, nondiscriminatory reasons

for the denial of complainant's permanent position and related working

conditions. The record indicates that complainant began her full-time,

temporary appointment, not-to-exceed one year, at the agency on August

31, 1997, as a Docket Clerk, GS-5. Thereafter, she was reassigned to a

variety of jobs to include a Master Docket Clerk, Legal Assistant, Hearing

Office Clerk, Case Processing Clerk, and Case Assistant. On April 22,

2001, complainant took Leave Without Pay (LWOP) for maternity reasons

which was extended on August 23, 2001. She returned to duty on September

18, 2001, and her appointment as Case Assistant expired and as a result

her employment at the agency ended on May 7, 2002.

Specifically, the agency's Hearing Office Director, complainant's second

line supervisor, stated that management had problems with complainant's

conduct and work performance, and when her term appointment expired,

it was decided to not renew her employment. A Group Supervisor,

complainant's immediate supervisor for a short time period, indicated that

all hiring and promotions in the office were competitive. Concurring with

the Hearing Office Director, the Group Supervisor added that complainant

was undependable, unreliable, and inconsistent, and she was a temporary

employee who was let go when her time expired. Specifically, the Group

Supervisor indicated that both complainant's work and her attendance

were inconsistent and she would disappear from the office for hours.

An agency Paralegal, who was a Hearing Office Manager from August 1997

to August 2000, and supervised complainant for two years during that

period, stated that complainant was an excellent worker as a Hearing

Office Clerk. However, when complainant was given a temporary promotion

to Senior Case Technician for one year, complainant's manager at that

time indicated that complainant performed poorly and complainant was not

retained in that position after one year. The Paralegal indicated that

when complainant was under her direct supervision, she had an opportunity

to make complainant permanent. She recommended that complainant apply

for a permanent Hearing Office Clerk, but complainant only applied for

a permanent Senior Case Technician job to which she was not selected

due to her poor performance during her temporary one-year performance,

described above. By mid-2000, stated the Paralegal, there were no other

opportunities to convert employees to permanent status. The Paralegal

extended complainant's temporary appointment as a Hearing Office clerk

for two more years.

A Senior Attorney stated that complainant had problems with her

pregnancy and had to be off work and on bed rest for an extended period.

The record indicates that on July 3, 2001, complainant's doctor authorized

complainant to return to work on July 17, 2001, with no restrictions.

However, on July 17, 2001, complainant submitted a request for leave

through August 17, 2001, which was later extended due to lack of proper

childcare. The Senior Attorney indicated that she telephoned complainant

when the time period of her leave slip expired and she had not returned

to work. Regarding the September 6, 2001 telephone conversation, we find

that complainant has failed to show that this constitutes a hostile work

environment or that the conversation was motivated by discrimination.

Based on the foregoing, the Commission finds that the agency articulated

legitimate, nondiscriminatory reasons for the denial of complainant's

permanent position at the agency and related working conditions.

The Commission also finds that complainant failed to show that the

agency's reasons were pretext for discrimination. After a review of

the record, the Commission finds that complainant failed to show, by

a preponderance of the evidence, that she was discriminated against on

the basis of disability. Accordingly, the agency's decision finding no

discrimination is AFFIRMED.<1>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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).

COMPLAINANT'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

March 30, 2006

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1The Commission does not address in this decision whether complainant is

a qualified individual with a disability. Complainant has not requested

a reasonable accommodation.