Kara Swier, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMay 25, 2007
0120062688 (E.E.O.C. May. 25, 2007)

0120062688

05-25-2007

Kara Swier, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Kara Swier,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01200626881

Agency No. 03-0366-SSA

DECISION

On March 22, 2006, complainant filed an appeal from the agency's February

9, 2006 final action 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.

At the time of events giving rise to this complaint, complainant worked as

a Social Insurance Specialist (Generalist Claims Representative Trainee)

(CR), GS-105-07. On July 3, 2003, complainant filed an EEO complaint

claiming that she was discriminated against on the bases of race

(Caucasian) and sex (female) when:

1. On June 10, 2003, complainant was terminated from her appointment as

a Social Insurance Specialist.

2. On April 28, 2003, complainant was placed on a 30-day performance

improvement plan that indicated that if her performance did not improve

in 30 days, her employment would be terminated.

On September 11, 2003, the agency accepted claim (1) for investigation.

The agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(4)

on the grounds that complainant initially raised the matter under the

negotiated grievance procedure prior to filing the instant complaint.

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). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �

1614.110(b) concluding that complainant failed to prove that she was

subjected to discrimination as alleged with regard to claim (1). The

agency stated that complainant's mid-training evaluation indicated that

she needed to improve in the areas of program knowledge and interviewing

and her final evaluation indicated that in addition to the aforementioned

areas, she needed to improve on her interpersonal skills. The agency

noted that on April 28, 2003, complainant received a performance

improvement plan which outlined the progress that she needed to make in

order to reach a successful level of performance within the prescribed

period of time. The agency determined that it provided complainant with

extensive assistance in resolving the identified performance deficiencies,

but that she was unable to improve her work performance. The agency

stated that complainant was terminated because of her unacceptable

performance and her failure to demonstrate the ability to acquire the

knowledge and skills required for successful performance of her job.

Complainant was cited for her inability to independently interview

claimants and her lack of basic program knowledge, and her lack of

improvement in these areas. The agency asserted that complainant was

not treated any differently than any other trainee. According to the

agency, complainant's second mentor stated that complainant was having

trouble fully understanding basic program information that she should

have learned during formal training. The mentor stated that complainant

failed to use the manuals to confirm information that she was given.

The mentor further stated that complainant was given sufficient time to

learn and understand the CRT position after she finished the IVT training.

The agency determined that it articulated legitimate, nondiscriminatory

reasons for its termination of complainant. The agency determined that

the record does not support complainant's claim that she was terminated

due to discrimination on the bases of her race or sex. Thereafter,

complainant filed the instant appeal.

Initially, we shall address the agency's dismissal of claim (2) on the

grounds that complainant elected to proceed on the same matter under a

negotiated grievance procedure which permits the acceptance of grievances

that allege discrimination. Upon review of the record, we observe that

the collective bargaining agreement provides that an employee shall be

deemed to have exercised his/her option at such time as he/she timely

files a grievance in writing or files a written complaint under the

statutory EEO procedure, whichever event occurs first. We observe that

the complainant's grievance concerning the 30-day performance improvement

plan was filed on May 21, 2003, and the instant complaint was filed on

July 3, 2003. It is clear that the grievance was filed first and the

fact that it was withdrawn on July 2, 2003, does not negate complainant's

exercise of the grievance as her option. Accordingly, the agency's

dismissal of claim (2) was proper.

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case claiming

discrimination is a three-step process as set forth in McDonnell Douglas

Corporation. v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.

For complainant to prevail, she must first establish a prima facie

case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000).

This order of analysis in discrimination cases, in which the first step

normally consists of determining the existence of a prima facie case,

need not be followed in all cases. Where the agency has articulated a

legitimate, nondiscriminatory reason for the personnel action at issue,

the factual inquiry can proceed directly to the third step of the

McDonnell Douglas analysis, the ultimate issue of whether complainant

has shown by a preponderance of the evidence that the agency's actions

were motivated by discrimination. United State's Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department

of Transportation, EEOC Request No. 05900150 (June 28, 1990). We find

that the agency has articulated legitimate, nondiscriminatory reasons

for the termination.

Complainant claimed that she was not afforded sufficient time to develop

her skills after her training was completed. According to complainant,

she received a performance improvement plan only two months after she

completed her formal training. Complainant also argued that a non-White

female committed many errors, but she was not terminated and was not

subjected to the same level of scrutiny. Upon review of the record,

it is clear that complainant was not progressing in the various skills

necessary to perform her position. The agency noted on evaluations that

complainant needed to improve in several areas. Complainant was placed

on a performance improvement plan, received a different mentor, and

received extensive feedback, refresher training, and a reduced workload.

The record establishes that complainant was unable to meet the standards

for successful performance of her job responsibilities. Complainant has

not established that the comparative employee that she cited experienced

the same level of difficulties in performing her work. We find that

complainant has failed to establish that the agency's stated reasons

for her termination were pretext intended to mask discriminatory intent.

The agency's decision is AFFIRMED.

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

May 25, 2007

__________________

Date

1Due to a new data system, this case has been redesignated with the

above referenced appeal number.

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01200626

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120062688