Ann J. Green, Complainant,v.William A. Halter, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 15, 2001
05a00831 (E.E.O.C. Feb. 15, 2001)

05a00831

02-15-2001

Ann J. Green, Complainant, v. William A. Halter, Acting Commissioner, Social Security Administration, Agency.


Ann J. Green v. Social Security Administration

05A00831

02-15-01

.

Ann J. Green,

Complainant,

v.

William A. Halter,

Acting Commissioner,

Social Security Administration,

Agency.

Request No. 05A00831

Appeal No. 01996278

Agency Nos. 96-0044-SSA; 95-0549-SSA

DECISION ON REQUEST TO RECONSIDER

On May 30, 2000, Ann J. Green (complainant) timely initiated a request to

the Equal Employment Opportunity Commission to reconsider the decision

in Ann J. Green v. Kenneth L. Apfel, Commissioner, Social Security

Administration, EEOC Appeal No. 01996278 (May 3, 2000). EEOC regulations

provide that the Commissioners may, in their discretion, reconsider any

previous decision where the party demonstrates that: (1) the previous

decision involved a clearly erroneous interpretation of material fact or

law; or (2) the decision will have a substantial impact on the policies,

practices or operation of the agency. 29 C.F.R. � 1614.405(b).<1>

For the reasons set forth below, the complainant's request is denied.

The issue presented is whether complainant's request meets the criteria

for reconsideration of the previous decision.

Complainant filed formal complaints alleging discrimination based on

race (black) and reprisal, and she was harassed, when (a) her calls and

use of time were monitored; (b) her SF-7B file had not been purged; and

(c) she was not relieved of �Spike� duties. Following investigations,

complainant requested an immediate final agency decision (FAD). On July

2, 1999, the agency issued its FAD, finding no discrimination. On appeal,

the previous decision affirmed the agency.

Complainant worked as a debt collection representative in Birmingham,

Alabama. She claimed that her calls and smoking breaks were monitored

and that she was given a "conduct interview" regarding her use of time,

with information being placed in her SF-7B file; that her husband, whom

she was divorcing, continually called and harassed her, but the agency

did not do anything to stop him; that her supervisors were aware that

she was identified as a witness in another employee's EEO complaint;

that there was old material in her SF-7B file; and that the agency

refused to release her from Spike duties, which increased her stress.

The agency stated that complainant's telephone use for personal business

was prohibited by agency policy and that, while her supervisor gave her

some leeway, complainant used the phone excessively and was absent for

extended time periods. Also, an agency official explained that Spike

duties were assigned based on seniority and were within complainant's

job description.

Complainant has filed a request that the Commission reconsider the

previous decision, arguing that an adverse inference should be drawn

against the previous decision based on its failure to discuss and

analyze the reasons for its finding of no discrimination. She requests

that documents submitted on appeal be reviewed. The agency submitted

comments in support of its FAD and the previous decision.

In order to merit the reconsideration of a prior Commission decision,

the requesting party must submit written argument that tends to establish

that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.

The Commission's scope of review on a request for reconsideration is

narrow, and it is not a form of second appeal. Lopez v. Department of

the Air Force, EEOC Request No. 05890749 (September 28, 1989); Regensberg

v. USPS, EEOC Request No. 05900850 (September 7, 1990).

The Commission's regulations require that all appeals be given a de novo

review. 29 C.F.R. � 1614.405(a). On appeal, the entire record in this

matter and all statements submitted on appeal were thoroughly reviewed.

Complainant's claims present claims of disparate treatment and

harassment. In the McDonnell Douglas<2> scheme, once the agency

articulated legitimate, nondiscriminatory reasons for its actions, the

ultimate burden of persuasion returns to the complainant to demonstrate

by preponderant evidence that the reasons given by the agency for its

actions were pretextual or a sham or disguise for discrimination.

The complainant must show that the agency's action was more likely

than not motivated by discrimination, that is, that the action was

influenced by legally impermissible criteria, i.e., race and reprisal.

Absent a showing that the agency's articulated reason was used as a tool

to discriminate against her, complainant cannot prevail. After a review

of complainant's request and the entire file, we find that complainant

has not submitted probative evidence to demonstrate pretext. Further,

complainant has not shown that the incidents of which she complained were

sufficiently pervasive and severe as to constitute illegal harassment or

that the agency's actions were unwarranted. See, generally, Enforcement

Guidance: Vicarious Employer Liability for Unlawful Harassment by

Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

CONCLUSION

After a review of the complainant's request for reconsideration,

the agency's reply thereto, the previous decision, and the entire

record, the Commission finds that the complainant's request fails

to meet any of the criteria of 29 C.F.R. � 1614.405(b), and it is

the decision of the Commission to deny the complainant's request.

The decision of the Commission in EEOC Appeal No. 01996278 (May 3, 2000)

remains the Commission's final decision. There is no further right of

administrative appeal from a decision of the Commission on a request

for reconsideration.

STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

____02-15-01______________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).