01-2006-3465_Burns
11-20-2007
Erica Burns, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Erica Burns,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200634651
Agency No. 050022SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 6, 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. Complainant
alleged that the agency discriminated against her on the basis of sex
(female) when: (1) on September 1, 2004, her Assistant District Manager
(ADM) gave her an inaccurate Student Career Experience Program (CO-OP)
Participant performance appraisal; (2) on September 2, 2004, ADM denied
her request to review her SF-7B Extension File; and (3) she has been
subjected to continuous harassment and hostile work conditions in that:
(a) the District Manager (DM) erroneously told her that she had to
enroll full-time in classes in order to retain her co-operative student
eligibility; (b) DM erroneously told her that she was ineligible for
working credit hours or overtime on Saturdays; (c) while DM allowed her to
take maternity leave without pay, she did not offer complainant the option
of taking advanced leave; (d) DM coerced complainant into returning to
work from maternity leave sooner than she wished by intimating that she
might not have a job if she did not; and (e) ADM engaged in subterfuge
concerning the source of her performance appraisal.
With respect to Claim 1, the record shows that there were no negative
aspects to complainant's appraisal. Constructive criticisms were made in
areas where continued improvements were recommended. Complainant provided
no information to support her contention that there were inaccuracies
in the rating of her performance for the rating period.
With respect to Claim 2, ADM states that he did not deny complainant
access to her SF-7B Extension File on September 2, 2004. Rather, he
explained to her that normally SF-7B Extension Files are maintained in an
administrative file to which he has access. However, in this instance,
DM was working with the complainant's file and had locked it in her desk.
Thus, she would have to wait until the next day, when DM returned to work,
to review her SF-7B Extension File.
With respect to Claim 3(a), a Personnel Specialist in the Chicago
Regional Office (PS), confirmed that she and DM discussed complainant's
school attendance in May 2003, and complainant was granted an exception
from full-time school attendance because they did not want her to pay
for classes she did not need. The Social Security Administration
Baccalaureate Cooperative Education Program Agreement, signed by a
representative from Wayne State University, and a representative from
the agency, set forth the conditions under which the University, the
agency and complainant, would function. Under Conditions of Student
Employment, Student eligibility, it states in paragraph 1A, that to be
eligible for participation in the program the student must "be enrolled in
a curriculum leading to a bachelor's degree on a substantially full-time
basis (usually at least 12 semester hours or the equivalent), and must
be pursuing a major field of study closely related to the job for which
he/she is being considered."
With respect to Claim 3(b), DM affirmed that she was not in error when
she told complainant that she could not work credit hours on Saturdays.
She told complainant that she was not eligible to work credit hours on a
Saturday because she was not a career or career conditional employee. DM
noted that Article 10, Section 14c of the National Agreement between the
agency and the American Federation of Government Employees (AFGE) states
that only permanent full-time or part-time employees can work credit
hours on a "non-tour day." Complainant was not a permanent employee.
DM also said that she never told complainant that she could not work
overtime on a Saturday.
With respect to Claim 3(c), DM noted that she did not offer complainant
the opportunity to take advanced sick leave because she was not
eligible for such leave in accordance with Article 31, Section 4D, of
the Contract. The provisions of Article 31, Section 4D, states that
"employees who are incapacitated for duty because of serious illness or
disability may be advanced sick leave for up to 30 days. The employee
will not be required to utilize any annual leave prior to utilizing the
advanced sick leave. Sick leave will be advanced when the following
required conditions have been satisfied: (1) the employee is serving
under a career or career-conditional appointment." Complainant, in a
co-op student status, was serving in an Excepted Appointment status,
and she was not in a career or career-conditional status. Therefore,
she was not eligible to be granted advanced sick leave.
With respect to Claim 3(d), DM affirmed that she did not "coerce"
complainant to return to work from maternity leave, or at any other time.
She noted that complainant's initial doctor's statement, dated March 8,
2004, (which the complainant submitted after she left for maternity leave)
stated that complainant's expected delivery date was April 20, 2004, and
that she would return to work six to eight weeks after delivery depending
on the type of delivery. Complainant notified DM that that she gave birth
on April 10, 2004. Based on this information she did a personnel input
to show complainant on Leave without Pay (LWOP) through June 20, 2004;
thus, giving complainant approximately eight weeks of maternity leave.
DM contacted complainant before June 21, 2004, to confirm whether she was
returning to work on June 21, 2004. DM explained to complainant that
she would have to effect another personnel action to show her staying
out longer if she was not returning on June 21, 2004. DM noted that
complainant told her she was returning on June 21, 2004. DM summarized
by stating that all of her actions involving the complainant "had to
do with the application of regulatory and contractual requirements."
None of her actions were taken because of complainant's gender.
With respect to Claim 3(e), complainant provided no information as
to how ADM engaged in hiding or attempted to evade any rule regarding
complainant's performance appraisal. ADM accomplished the performance
appraisal at issue. The performance appraisal was accomplished
in accordance with the provisions of items 9 and 10, of the agency
responsibilities noted in the Social Security Administration Baccalaureate
Cooperative Education Program Agreement.
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.2
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
November 20, 2007
__________________
Date
1 Due to a new data system, complainant's case has been re-designated
with the above-referenced appeal number.
2 We note that the record is devoid of evidence of pretext or gender
animus.
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0120063465
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036