01a10880
02-27-2001
Carolyn J. Limbs, Complainant, v. William A. Halter, Acting Commissioner, Social Security Administration, Agency.
Carolyn J. Limbs v. Social Security Administration
01A10880
02-27-01
.
Carolyn J. Limbs,
Complainant,
v.
William A. Halter,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A10880
Agency No. 00-0035-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.<1>
Complainant, an operations unit supervisor, filed a complaint in which
she claimed that the agency retaliated against her for having previously
filed an EEO complaint by not giving her an award in August 1999. The
agency investigated the complaint and notified complainant of her right
to request a hearing. Complainant asked for a final decision without a
hearing, and in accordance therewith, the agency issued a final decision
of no reprisal. It is from this decision that complainant appeals.
To prevail on her reprisal claim, 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 initially establish a
prima facie of reprisal by showing: (1) that she engaged in protected
EEO activity; (2) that the agency was aware of that activity; and (3)
that she was subjected to an adverse action at such a time or in such a
manner as to support a causal connection between the two events. Frye
v. Department of Labor, EEOC Request No. 05940764 (December 15, 1994).
The prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated a legitimate and nondiscriminatory
reason for not giving complainant a performance award, namely that her
unit turned in the lowest performance for the year among the three units.
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 reprisal.
Reeves v. Sanderson Plumbing Products, Inc., ____U.S.____, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995). Supervisors and managers generally have broad discretion
to set policies and carry out personnel decisions, and should not be
second-guessed by the reviewing authority absent evidence of unlawful
motivation. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 259 (1981); Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997); Kohlmeyer v. Department of the Air Force,
EEOC Request No. 05960038 (August 8, 1996).
After reviewing the record, we find that complainant has not met her
burden. Both her first and second-line supervisors stated in their
affidavits that they gave the awards based on supervisory performance,
which, in essence, means the team performance of each unit. They stated
that, of the three operations units that they supervised, complainant's
unit turned in the lowest performance level during the 1998 fiscal year,
the period for which the awards were given. Investigative Report Exhibits
(IREs) 6, 7. Their assessments are corroborated by statistical data
measuring unit performance in five categories: calls per hour, call
work, availability, accuracy, and average points per unit employee.
Complainant's unit received the fewest points in all five categories.
IREs 9, 10, 11.
When asked by the investigator why she believed that her supervisors
retaliated against her by not giving her a performance award, complainant
stated that the first-line supervisor had no documented criteria to
determine who were the best performers, that he was not in a position
to know what an individual operations supervisor does, and that he did
not ask her or the other two operations supervisors to submit their
accomplishments for inclusion in their performance appraisals. She also
stated that she had several employees with continuing health problems that
require leave and reduce productivity, and that she had two new employees
who were often late. Finally, complainant stated that her first-line
supervisor did not take her own accomplishments into consideration.
IRE 5.
Complainant's first-line supervisor responded that their computer
system generated a daily report for each unit showing the performance of
individual unit members in the various performance categories evaluated.
He also stated that the reports were structured in such a way that he and
the operations supervisors could readily identify performance problems
within a particular unit, and that he met with the operations supervisors
once or twice a month to discuss performance issues. We find, contrary to
complainant's assertion, that the supervisor did have documented criteria
on which to base the awards, and that he was aware of what was going
on in each unit. The supervisor disputed complainant's contention that
she had more problem employees than the other operations supervisors.
He stated that other units have disciplined employees, that complainant
had fewer employees on leave restrictions than the other operations
supervisors, and that the time that employees were on leave did not
count against the operations supervisors. IRE 6. Complainant has not
presented any evidence, other than her own assertions, which contradicts
the statements offered by the first-line supervisors, or which undermines
his credibility as a witness.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
____02-27-01______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.