Annemarie Rotondo, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionSep 16, 2002
01A13438 (E.E.O.C. Sep. 16, 2002)

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.