01A13438
09-16-2002
Annemarie Rotondo, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Annemarie Rotondo v. Social Security Administration
01A13438
September 16, 2002
.
Annemarie Rotondo,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A13438
Agency No. 00-0161-SSA
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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.<1>,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final decision.
The record reveals that during the relevant time, complainant was
employed as a GS-105-11 Bilingual Claims Representative at the agency's
Region 1 (New England) facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on January 4, 2000, alleging that
she was discriminated against on the bases of national origin (Irish
American), disability (varicose veins, arthritis, high blood pressure,
high cholesterol, and difficulty breathing), and age (D.O.B. May 22,
1941) when she was subjected to a continuous pattern of discrimination
including when:
(1) on October 16, 1999, she was not selected for a Management Analyst
(Fiscal) position, GS-12, which was posted under vacancy announcement
number 14-99 in the Boston Regional Office; and
her request for hardship reassignment based upon her documented medical
problems was denied.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision, concluding that
complainant failed to demonstrate that she was discriminated against.
It is from this final decision that complainant now appeals. For the
purposes of our analysis we assume without finding that complainant is
an individual with a disability pursuant to the Rehabilitation Act.
Complainant suggests that the agency failed to select her for the
Management Analyst (Fiscal) position and other positions at the agency on
the bases of her membership in the protected classes referenced above.
She indicates that the selectees for these positions were younger
employees. Complainant also argues that her disabling conditions have
been factors in the non-selections. Complainant also asserts that the
agency discriminated against her in July 1999, when she filed a request
for a hardship transfer based upon her documented medical problems.
Separately, complainant argues that she was discriminated against because,
as a Bilingual Claims representative, she handles a large volume of
Spanish speaking customers.
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). To prevail in a disparate treatment claim such
as this, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case
by demonstrating that she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima
facie inquiry may be dispensed with in this case, however, since the
agency has articulated legitimate and nondiscriminatory reasons for its
conduct. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley
v. Department of Veterans Affairs, EEOC Request No. 05950842 (November
13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351
(December 14, 1995).
In this case the agency has articulated legitimate nondiscriminatory
reasons for its failures to grant complainant's hardship reassignment
requests and for not promoting her to the Management Analyst (Fiscal)
position.<2> Specifically, the agency explains that complainant had
less superior skills as compared to the selectee for the Management
Analyst position. Regarding the agency's failure to grant complainant's
request for hardship reassignment, the agency explained that complainant's
request simply detailed her preference to perform the same duties in a
different location without explaining her hardship. The complainant
offers no evidence that the agency's reasons are unworthy of belief.
In addition complainant has not identified facts which could support
a finding that she was subjected to a pattern of discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (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
September 16, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 We note that complainant's request for a hardship reassignment did
not constitute a request for a reasonable accommodation. Reasonable
accommodation means �modifications or adjustments that enable a
covered entity's employee with a disability to enjoy equal benefits and
privileges of employment as are enjoyed by its other similarly situated
employees without disabilities.� 29 C.F.R. � 1630.2(o)(1)(iii). Here,
notwithstanding complainant's phrasing of her complaint, her request for
a transfer to the same position at one of the agency's other facilities
was based on her dissatisfaction with her current work situation.