Gwendolyn G. Kelley, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 16, 2005
01a50443 (E.E.O.C. Mar. 16, 2005)

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.