0120103704
05-02-2011
Bertha Lee-Packnett, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Bertha Lee-Packnett,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120103704
Agency No. KS-09-0059-SSA
DECISION
Complainant appeals to the Commission from the Agency’s final
decision dated August 20, 2010, finding no discrimination. 29 C.F.R. §
1614.405(a). For the following reasons, we AFFIRM the Agency’s final
decision.
BACKGROUND
In her complaint, dated December 1, 2008, Complainant, a Senior Case
Technician (Legal Assistant), GS-986-8, at the Agency’s Office of
Disability Adjudication and Review, Kansas City, Missouri, alleged
discrimination based on race (Black) and in reprisal for prior EEO
activity when: (1) on October 28, 2008, she was given an appraisal
interview with negative comments regarding problems with multitasking,
which resulted in her not being eligible to receive a promotion to
an Administrative Assistant position; and (2) she was subjected to
a hostile work environment on October 27, 2008, when she received an
email stating that her computer was being audited because of improper
use and she was subjected to a false allegation made by a co-worker.
Report of Investigation (ROI), Exhibit (Ex.) A.
After completion of the investigation of the complaint, Complainant
requested a hearing but later withdrew the request. The Agency then
issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its actions, which Complainant failed
to rebut.
ANALYSIS AND FINDINGS
After a review of the record, we, assuming arguendo that Complainant
had established a prima facie case of discrimination, find that the
Agency has articulated legitimate, nondiscriminatory reasons for the
alleged actions. Specifically, with regard to claim (1), Complainant’s
supervisor indicated that while Complainant was able to complete case
pulls on a timely basis, there were occasional timeliness problems with
her scheduling duties. ROI, Ex. F3. The Agency Human Resource Specialist
stated that Complainant’s performance appraisal, which included the
supervisor’s comments, described above, was not considered and played
no role in her determination that Complainant was unqualified for a
promotion to the GS-9, Administrative Assistant position. ROI, Ex. F5.
Specifically, the Specialist indicated that Complainant did not qualify
at the GS-9 level because her job application disclosed that she had
only eight months of specialized experience at the GS-7 level or higher,
while the GS-9 level required one year. Id. The Agency indicated that
Complainant failed to show that she was treated less favorably than
similarly situated employees regarding the matter. Agency’s Final
Decision, p. 8.
With regard to claim (2), Complainant’s former supervisor stated that
Complainant’s coworker made a report that Complainant was showing
confidential time and attendance information to another coworker. ROI,
Ex. F2. Based on this report, the former supervisor referred the alleged
confidential breach to higher-level management who conducted an audit
of Complainant’s computer. Id. Since the investigation determined no
discrepancies in Complainant’s use of the computer system, stated the
former supervisor, she did not approach Complainant about the matter.
Id. The Agency stated that there was no evidence that Complainant was
treated differently than other similarly situated employees regarding
the incident. Agency’s Final Decision, p. 10.
After a review of the record, we find that Complainant has failed to
show that the Agency’s actions were motivated by discrimination as
she alleged. We further find that Complainant failed to show that the
alleged harassment was sufficiently severe or pervasive to affect a term
and condition of her employment.
CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
5/2/11
__________________
Date
2
0120103704
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103704