0120064604
03-25-2008
Betty Jo Kelly, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Betty Jo Kelly,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200646041
Agency No. 040453SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 10, 2006, final decision concerning
her equal employment opportunity (EEO) complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
Complainant began her employment with the agency in June 2001,
as a Schedule A appointment, and was promoted from a file clerk to
legal assistant in the Office of Hearings and Appeals at the agency's
"Mega-Center" in Springfield, Virginia. She filed a formal complaint,
claiming discrimination based on race (Caucasian), disability (carpal
tunnel syndrome, osteoarthritis, neuropathy), age (D.O.B. 03/18/47),
and in reprisal for prior protected EEO when: in April 2004, (a) she
was harassed and not converted to a career position from her Schedule
A appointment; and (b) she was denied a reasonable accommodation to
rotate among assignments.2 Following an investigation, complainant did
not request a hearing, and the agency issued its final decision (FAD),
finding no discrimination.
The agency assumed arguendo that complainant established a prima facie
case of discrimination as to all of her alleged bases, management
articulated legitimate, nondiscriminatory reasons for not converting
her to a career position. Specifically, her first level supervisor (S1)
made no recommendation regarding her conversion. Moreover, management
officials believed that her demeanor and level of professionalism
were matters of concern. The agency found that complainant failed
to show that these reasons were pretextual or that she was subjected
to harassment. With regard to her claim that she was denied reasonable
accommodation, the agency found that management officials testified,
and complainant did not dispute, that she rotated among assignments
and had been provided with numerous reasonable accommodations to allow
her to perform her assigned duties. The agency noted that, although
complainant wished to have the reasonable accommodations she received
memorialized in writing, such a requirement does not exist. It concluded
that complainant failed to establish by a preponderance of the evidence
that the agency discriminated against her as alleged.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed,3 it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred.
Accordingly, the agency's decision is affirmed.
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
__03-25-2008________________
Date
1 Due to a new data system, the case number has been restyled.
2 On November 23, 2004, the agency dismissed three claims, and complainant
has not addressed them on appeal. We affirm the agency's action.
3 We assume without finding, for purposes of analysis only, that
complainant is an individual with a disability.
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0120064604
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064604