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.