01a50443
03-16-2005
Gwendolyn G. Kelley, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Gwendolyn G. Kelley v. Social Security Administration
01A50443
March 16, 2005
.
Gwendolyn G. Kelley,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A50443
Agency No. SSA-01-0301
Hearing No. 130-A2-8239X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that, during the relevant period, complainant was
employed as a GS-9, Benefits Authorizer at the agency's Module 4 facility
in Birmingham, Alabama. Complainant filed a formal EEO complaint on April
23, 2001, alleging that the agency discriminated against her on the bases
of race (White), sex (female), disability (carpal tunnel syndrome), age
(51), and in reprisal for prior EEO activity when:
(1) she was not selected for the GS-105-11, Social Insurance Specialist
(SIS) positions that were advertised under vacancy announcement numbers
SEPSC 6-00 and SEPSC 6-00a;
she was denied reasonable accommodation regarding her request for a
Voice Recognition Input System (VRIS) on September 22, 2000;
she did not receive a Recognition of Contribution (ROC) award for her
work in 2000; and,
she did not receive a favorable recognition from her manager for the
GS-105-11, SIS position or for the GS-10, Post Entitlement Technical
Expert position.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The record reflects that complainant failed
to comply with instructions issued by the AJ. As a result the case was
returned to the agency for issuance of a final order.
In its final order dated September 3, 2004, the agency concluded that
complainant was not discriminated against as alleged. In particular,
the agency found that there were legitimate, nondiscriminatory reasons
for its actions. In regard to not being selected for the GS-105-11,
SIS position, the agency noted that the selectees were rated by an
assessment panel who reviewed the applications and assigned scores.
The selecting official then chose individuals from the well qualified list
based on their overall qualifications which included their knowledge,
skills, work experiences, accomplishments, etc. The agency also noted
that complainant did not show that her qualifications were observably
superior to any of the selectees.
In regard to being denied reasonable accommodation for VRIS, the agency
found that complainant was not denied such accommodation. Specifically,
the agency noted that the delay in complainant receiving VRIS was due
to the fact that headquarters had to approve the request. The agency
also noted that no other employee in Division 1 used VRIS. The agency
further noted that complainant's supervisor followed up on the VRIS
request several times until it was finally provided.
In regard to not receiving a Recognition of Contribution award in 2000,
the agency dismissed the claim as moot.<1> In particular, the agency
noted that complainant did receive a Recognition of Contribution award
in 2000 and the award money was disbursed in February 2001. In regard
to not receiving a favorable recommendation, the agency found that
complainant was recommended for the position.
Complainant essentially raises the same contentions on appeal, and the
agency requests that we affirm its final order.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
legitimate, nondiscriminatory reasons for its actions.<2> See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.
The Commission finds that the FAD correctly concluded that the agency
did not discriminate against complainant on the bases of race, sex,
disability, age or in reprisal for prior EEO activity. In finding no
discrimination, the FAD relied on the undisputed evidence that complainant
was not observably superior to the selectees for the subject positions.
The record also establishes that complainant's supervisor did recommend
her for the one position that she received a request. Based on the
foregoing, we find that the agency has articulated a legitimate,
nondiscriminatory reason for its actions.
The Commission also finds that complainant did not establish that more
likely than not, the agency's articulated reasons were a pretext to mask
unlawful discriminatory animus. In reaching this conclusion, we note
that the record indicates that other than complainant's own assertions,
there is no evidence that any of the agency's actions were based on race,
sex, disability, age or in reprisal for prior EEO activity.
Furthermore, the Commission agrees with the agency's conclusion that
complainant was not denied a reasonable accommodation in regard to her
VRIS request. The Commission notes that, although there was a delay
in the arrival of the VRIS software, that was due to the fact that
the request was unique. In addition, unlike more routine requests for
ergonomic chairs and keyboards, the VRIS request had to be sent to the
agency's headquarters for approval. The record also shows that after
submission of the request to headquarters, complainant's supervisor made
follow-up calls to inquire about the status of the request. The record
contains no evidence that the agency's delay in approving complainant's
VRIS request was due to acts of bad faith.
Based on the foregoing, and after a careful review of the record,
including arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final order.
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
March 16, 2005
__________________
Date
1The Commission notes that, although the agency dismissed this claim
as moot, complainant failed to raise on appeal whether this dismissal
was proper. In light of this fact, the Commission declines to address
whether this dismissal was appropriate.
2 Because we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions, we do not reach the issue of
whether complainant is a qualified individual with a disability.