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