0120060070
05-22-2008
Carla R. Folson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Carla R. Folson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200600701
Hearing No. 150-2004-00383X
Agency No. SSA-02-0124
DECISION
On September 17, 2005, complainant filed an appeal 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Case Assistant for the agency's Office of Hearing and Appeals (OHA)
in Miami, Florida.
Complainant filed an EEO complaint dated December 9, 2001, which she
later amended. The agency issued an acceptance letter on May 22,
2003, accepting all the issues identified in complainant's complaint.
In its acceptance letter, the agency noted complainant alleged that she
was discriminated against on the bases of race (African-American), sex
(female), color (dark brown), disability (migraine cephalgia and left eye
blindness), age (44), and in reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:
1. Complainant was not selected for the following positions:
a. GS-986-6/7/8 Case Assistant that was announced under vacancy
announcement numbers OHA 42-01, OHA 43-01, OHA 44-01, OHA 45-01,
OHA 47-01, OHA 50-01, OHA 52-01, OHA 53-01, OHA 54-01, OHA- 55-01,
OHA 123-01.
b. GS-986-6/7/8 Legal Assistant that was announced under vacancy
announcement numbers OHA 63-03, OHA 114-02, OHA 26-03.2
c. GS-962-5/6/7 Contact Representative that was announced under OHA
52-03.
2. On July 28, 2002, management reassigned complainant from a GS-986-6
Case Assistant position to a GS-986-6 Legal Assistant (Office Automation)
position. Complainant claims that because the Legal Assistant position
is classified as a GS-6/7/8 career ladder and she has performed in a
satisfactory manner, she should have been promoted within that career
ladder.
3. Complainant was subjected to an ongoing pattern of harassment and a
hostile work environment when:
a. She was not being granted reasonable accommodation. Specifically,
she was not granted a hardship transfer to care for her family member
and that another employee was given the transfer.
b. Management has made no accommodation for the headaches she suffers
from by failing to grant her a telephone that blinks rather than rings.
c. Management placed complainant on leave restrictions and charged
her absent without official leave (AWOL) for instances that she contends
should have been charged to sick leave since medical documentation
was submitted. Complainant contends that the AWOL charges were used by
management as a basis for not approving step increases and not giving
her awards.
d. On May 10, 2002, management erroneously investigated and denied
complainant's request to perform outside activities.
e. Management has assigned complainant an inequitable distribution
of work assignments. Specifically, complainant is assigned to
the reception area much more often than her peers.
f. On March 18, 2003, management chastised complainant for
misdirecting one set of medical evidence to the wrong medical expert.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On October 27, 2004, the agency filed a Motion
to Dismiss many of the allegations in complainant's complaint.
Complainant filed a response entitled Complainant's Motion Not to
Dismiss Non-Selection, Promotion, Reasonable Accommodation, AWOL &
Leave Restriction Claims. Although complainant's response was untimely
submitted, the AJ decided to consider complainant's response in rendering
her decision. On December 17, 2004, the AJ issued an Order dismissing the
non-selections listed in issue 1a on the grounds that complainant failed
to timely contact an EEO Counselor with regard to those non-selections.
The AJ also dismissed issues 1b and 1c on the grounds that complainant
failed to state a claim upon which relief could be granted. The AJ
noted that the non-selection for the position under vacancy announcement
number OHA 43-02 (in issue 1b), issue 2, and issue 3 still remain to
be decided.
Thereafter, the agency filed a motion for summary judgment and complainant
responded objecting to summary judgment. On March 4, 2005, the AJ issued
a decision without a hearing. The agency acknowledged it received the
AJ's decision on March 17, 2005. The agency issued a final order fully
implementing the AJ's decision on May 12, 2005.
We note that complainant submitted correspondence in support of her appeal
on October 19, 2005, and December 31, 2005. Since these submissions were
beyond the applicable limitations period, we will not consider them on
appeal.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
We do not decide in this decision whether complainant is a disabled
individual.
Procedural Dismissals
At the outset, we find that the dismissal of the non-selections
identified in issue 1a was proper. We note that complainant applied
for the positions listed in issue 1a in 2001 and selections for nine
of those positions occurred in March 2001 (OHA 42-01, 43-01, 45-01,
47-01, 50-01, 52-01, 53-01, 54-01, 123-01).3 The record reveals that
despite the referral of three candidates for the position under OHA
44-01 and the referral of five candidates for OHA 55-01, a decision
was made in March 2001, not to fill these positions. The record
reveals that complainant did not initiate EEO Counselor contact until
October 29, 2001, which was beyond the applicable limitations period.
Despite complainant's contention on appeal that she did not have all the
information necessary to support her complaint until after she received
the report of investigation, we note a complainant must contact an EEO
Counselor when she has a "reasonable suspicion" of discrimination.
Further, we recognize that a non-selection is a discrete action and
therefore is not actionable if time-barred. National Railroad Passenger
Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). Upon review, we find
complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact with
regard to the non-selections listed in issue 1a.
With regard to issues 1b4 and 1c, complainant claims that she
was subjected to discrimination when she was not selected for OHA
114-02, OHA 26-03, and OHA 52-03. However, the record reveals that the
announcement for OHA 26-03 was cancelled and the position was not filled.
Additionally, the record reveals that OHA 114-02 was not filled. The
record shows that OHA 52-03 for a Contact Representative in Miami, Florida
was cancelled and then reposted with a bilingual requirement. Agency
officials contend that at the time in the Miami Hearing Office nearly
half of the customers were Spanish-speaking only. Two Spanish-speaking
persons were selected. Further, the agency contends that complainant was
not bilingual and did not apply for the reposted position. We find that
issues 1b and 1c were properly dismissed for failure to state a claim.
Non-selection for OHA 43-02
Complainant claims that she was subjected to discrimination when she
was not selected for a GS-6/7/8 Senior Case Technician (SCT) position
at the Miami OHA, advertised under vacancy announcement OHA 43-02.
On July 28, 2002, a White, Hispanic female was chosen (Selectee) who
at the time of the selection was a Case Technician in the Miami Hearing
Office. The Selecting Official (SO), the Chief Administrative Law Judge,
stated that the Selectee, at the time of her selection, "single-handedly
did all the typing of dictated decisions for the entire office, which
processes the dockets of nine Administrative Law Judges" and also noted
the Selectee was productive, accurate and timely. SO noted the Selectee
"gets along well with everyone . . . and has demonstrated a desire
to foster unity rather than divisiveness among staff." SO described
complainant as unproductive and noted that "several of the Administrative
Law Judges complained about [complainant's] poor performance. The gist
of those complaints was that she did not get her work (such as mailing
out decisions and preparing final decisions after correction) done in a
timely manner." SO also stated that complainant was "quite difficult
to deal with . . . seemed unable to comprehend or follow some of the
instructions she was given . . . apparently believed it was her right to
question every instruction she was given [and] demonstrated difficulty
prioritizing tasks as well."
Additionally, the Recommending Official (RO), the Hearing Office
Director, noted the Selectee was efficient at multi-tasking, an effective
communicator with the public and dealt well with stressful situations.
RO also noted that while volunteering to be a timekeeper, the Selectee
"performed her duties well and made few mistakes due to her ability to
notice details, and due to her organizational skills." With regard to
complainant, the RO stated that although complainant "could be a good
employee when and if she put her mind to the task at hand, I sometimes had
to take work that was assigned to her and give it to others to complete
because it was either not finished timely or not done correctly."
Upon review, we find the grant of summary judgment was appropriate as no
genuine issues of material fact exist. With regard to the non-selection
for OHA 43-02, we find that the agency articulated legitimate,
non-discriminatory reasons for selecting the Selectee over complainant.
Complainant failed to present evidence that her qualifications were
superior to those of the Selectee. Further, while complainant contends
that the Selectee was the friend of another Judge in the office, we note
complainant failed to present evidence that the agency's actions were
motivated by discriminatory animus toward complainant's protected class.
Career Ladder Promotion
Complainant contends that the agency discriminated against her when she
was not promoted within the career ladder of her Legal Assistant position.
The record shows that in August 2001, the Office of Personnel Management
(OPM) issued a new Job Family Position Classification Standard for
assistance work which resulted in changing the Case Assistant position
then held by complainant into a Legal Assistant/Case Technician position.
Accordingly, complainant's title was reassigned from Case Assistant to
Legal Assistant/Case Technician effective July 28, 2002; however, the
position description did not change. The record reveals that the Legal
Assistant position held by complainant is not a GS-6/7/8 career ladder
position. Rather, the highest career ladder level for the Legal Assistant
position held by complainant is the GS-6 level which complainant had
already reached. Thus, complainant has not shown that she was subjected
to discrimination when the agency reassigned her from her previously
held Case Assistant position to a Legal Assistant position. Further,
we find that the agency has presented a legitimate, non-discriminatory
reason for complainant's failure to be promoted within the career ladder,
namely that the highest career ladder level for the Legal Assistant
position is the GS-6 level, which complainant already achieved.
Hardship Transfer
Complainant contends that she was subjected to discrimination when she
was not initially granted a permanent hardship transfer from the Miami,
OHA, Region IV to the Detroit, OHA, Region V. Complainant applied for a
transfer on August 10, 2001, to care for her disabled mother. On August
16, 2001, the Regional Management Officer, Region IV, sent complainant's
request to the Acting Regional Management Officer, Region V, (RMO 1-Region
5) indicating that Region IV would not give up a Full-Time Equivalent
(FTE) in order to facilitate the transfer. On September 13, 2001, the
Regional Chief Administrative Law Judge, Region V, informed complainant
that her request was denied due to Region V's staffing limitations.
Despite the initial denial of her request for a permanent transfer,
the agency granted complainant several temporary details to the Detroit
Office from December 2001 to April 2002, a detail from June 2002 to
October 2002, and a detail from October 5, 2003 to February 2, 2004.
The record reveals that Employee X, a GS-13 Attorney Advisor, was the only
other employee from the Miami OHA who requested and received a hardship
transfer to Region V during the relevant period. The Acting Region V
Regional Management Officer (RMO 2-Region V) states that when Employee X
was transferred as a GS-13 Attorney Advisor to Evansville, Indiana OHA in
November 2001, the office had appropriate room under its staffing ceiling
for a FTE and had workload and public service needs for an attorney
advisor.5 Further, RMO 2-Region V stated that Region V's staffing ceiling
never improved to the point where a GS-6 claims technician FTE, such as
complainant, could be allocated to the Detroit OHA until February 2004,
when complainant was permanently transferred to Detroit. Thus, we find
complainant has failed to show that the agency's articulated legitimate,
non-discriminatory reasons for initially denying complainant's transfer,
i.e. staffing shortfalls, was a pretext for discrimination. Furthermore,
we find that complainant was not denied a reasonable accommodation when
her initial transfer request was denied, because she has not linked the
transfer request to any of her claimed disabilities.
Reasonable Accommodation
Complainant claimed that her migraine headaches were triggered by the
fluorescent lights and beeping earphones that she used while working
in the reception area at the Miami OHA. Complainant submitted medical
information from her doctor indicating that the fluorescent lights and
beeping seem to be a trigger to her headaches and opining that it would
be advantageous to remove these triggers from her work area. The record
reveals that the agency permitted complainant to turn the light off
while she worked in the reception area and to wear dark glasses and/or
wear a hat while at the reception area. When complainant complained
that on occasion someone would turn the light on, the record reveals
management advised her to place tape or a cover designed by one of
the group supervisors over the light switch to prevent inadvertent
turning on of the light switch. Further, the record reveals that two
table lamps were purchased for complainant's use when she was in the
reception area to use instead of the fluorescent lights. Additionally,
the record reveals that the beeping sound was removed from the phone.
We find that while complainant was not provided the accommodation of her
choice, the agency did provide a reasonable accommodation for complainant.
Further, while complainant states that she did receive some comments and
questions when she had the lights off and wore the dark hat and/or dark
glasses, we find the severity and frequency of the comments alleged do
not rise to the level to constitute a hostile work environment.
Leave Restrictions and AWOL
Complainant claims that she was discriminated against when the agency
placed her on leave restriction and charged her AWOL. The record shows
that the agency placed complainant on leave restrictions on December 26,
2000, due to excessive absenteeism and because she repeatedly submitted
requests for leave without supporting medical documentation. The agency
notes that after being placed on leave restrictions, complainant failed
to comply with the terms of her leave restriction on several occasions
which resulted in her being charged AWOL. Upon review, we find the agency
presented a legitimate non-discriminatory reason for placing complainant
on leave restrictions and charging her AWOL, which complainant cannot
show was a pretext for summary judgment. Further, we find there is
no indication in the record that the AWOL charges improperly affected
complainant's step increases and awards.
Request to Perform Outside Activities
On July 18, 2000, complainant requested to sell pre-paid legal
services as an outside activity. The Miami Hearing Office Chief
Administrative Law Judge denied complainant's request on August 14,
2000, and complainant was provided the reasons for the denial: that
no agency employee should participate in pre-paid legal associations
because the services may include claims involving the agency, and thus,
could pose a conflict of interest. Complainant appealed the decision
to deny her participation in outside activity to the Regional Chief
Administrative Law Judge (RCALJ) and on May 10, 2001, the RCALJ denied
complainant's request stating the activity was prohibited pursuant
to the Standards of Ethical Conduct. In January 2001, a management
official called complainant at home regarding an absence from work
and heard a recorded message from complainant identifying herself as
a pre-paid legal associate. The Miami Hearing Office Chief ALJ then
told complainant to cease her outside activity. On May 22, 2001, the
agency received an unaddressed facsimile from Pre-Paid Legal Marketing.
Thereafter, in November 2001, management called complainant's home to
inform her that the federal building would be closed the following day due
to a hurricane and heard a greeting by complainant identifying herself
as a pre-paid legal associate. The agency then called Pre-Paid Legal
Services who confirmed that complainant has been an active associate since
September 1999, and had made her last sale in March 2001. Upon review,
we find the agency presented legitimate, non-discriminatory reasons for
its actions in investigating and denying complainant's request to sell
pre-paid legal services as an outside activity which complainant failed
to show was a pretext for discrimination.
Distribution of Work Assignments
Complainant notes that she arrives to the office at 6:30 a.m. and that
the reception desk opens to the public at 8:00 a.m. Complainant claims
that if no other legal assistants arrive by 8:00 a.m., then management
automatically asks complainant to cover the reception area. Specifically,
complainant states that on October 15, 2001, she received an electronic
mail message on a day when she was absent, in which her first line
supervisor (S1) asked for volunteers to work the reception desk but made
it mandatory for her. We note that since complainant admits she was
absent on October 15, 2001, she was not forced to work at the reception
desk that day. Additionally, complainant states that on November 21,
2001, S1 yelled at complainant to cover the reception desk. S1 states
that there was only one time that complainant was required to work the
reception desk and that was because no one else was there. S1 noted
that volunteers were asked before making coverage mandatory and further
noted that mandatory coverage was rotated. Further, the Hearing Office
Director stated that the reception assignments and back-ups were rotated.
Upon review, we find complainant failed to show that she was subject to
discriminatory treatment with regard to work assignments.
Misdirecting Medical Evidence
On Friday March 7, 2003, Person X, the Acting Group Supervisor, left a
note on complainant's desk noting that the medical examiner in the case
did not receive copies of relevant information and asking complainant
to send the medical expert copies by Monday. Complainant questioned
Person X's authority to request that copies be redone and resent for
Monday delivery. The record contains a March 7, 2003 electronic mail
message from the Hearing Office Director noting that Person X and three
other employees will be Acting Group Supervisor that day. The record
reveals that complainant sent copies of the relevant information to
the wrong medical expert and a hearing on the matter was scheduled
for Wednesday March 12, 2003, thus necessitating quick delivery of the
information. Upon review, we find the agency presented a legitimate,
non-discriminatory reason for its actions which complainant failed to
show was pretext for discrimination.
Further, we find that because complainant has not shown that any action
was motivated by discrimination, she has failed to show that she was
subjected to a discriminatory hostile work environment.
CONCLUSION
Accordingly, the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 22, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 In her affidavit, complainant states that she does not recall having
applied for vacancy announcement number OHA-63-03 and states she thinks
this was an incorrect reference to the position under OHA-43-02.
3 Although the record does not contain the selection materials for OHA
123-01, the agency contends, and complainant does not dispute, that the
selection for this position occurred in March 2001, the same time as
all companion case assistant selections were made.
4 In her affidavit, complainant states that she does not recall having
applied for vacancy announcement number OHA 63-03 and states she
thinks this was an incorrect reference to the position under OHA 43-02.
The record reveals that the vacancy for OHA 43-02 was filled July 28,
2002, and thus, was not time-barred. The non-selection for OHA 43-02
will be addressed herein.
5 The record reveals RMO 2-Region V became Acting RMO on September 23,
2001.
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0120060070
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036