0120113783
01-11-2013
Lorna Bibbie, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Lorna Bibbie,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120113783
Agency No. CHI-10-0853-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 16, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Social Insurance Specialist (Claims Authorizer), GS-105-11, at the Agency's Great Lakes Program Service Center (GLPSC) in Chicago, Illinois.
On October 12, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of sex (female), color (light-skinned), age (over 40), and in reprisal for prior EEO activity when:
1. on August 4, 2010, management placed her work on a 30-day 100-percent review; and
2. management threatened to place her on a performance enhancement plan after the 30-day 100-percent review.
On November 19, 2010, the Agency issued a partial dismissal. The Agency accepted claim 1 for investigation. The Agency, however, dismissed claim 2 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency determined that Complainant did not show she suffered a personal loss or harm to a term, condition or privilege of her employment. The Agency further found that the alleged acts did not rise to the level of harassment.
After the investigation of claim 1, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on June 16, 2011, pursuant to 29 C.F.R. � 1614.110(b).
In its June 16, 2011 final decision, the Agency dismissed claim 2 on the alternative grounds of raising the same claim that is pending before or has been decided by the Agency or the Commission, pursuant to 29 C.F.R. 1614.107(a)(1). Specifically, the Agency stated that Complainant raised the same claim in a prior formal complaint, indentified as Agency No. CHI-10-0571. The record reflects that in that prior formal complaint, Complainant alleged that she was discriminated against when on February 4, 2011, she was placed on a Performance Assistant Plan (PAP) and verbally informed that she could not work overtime or credit time. The PAP addresses the fact that management continued to review Complainant's performance and ultimately placed her on a PAP. The Agency determined that claim 2 in the instant formal complaint and the prior formal complaint address the same matter.
The Agency then proceeded to address claim 1 on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of sex, color, age, and reprisal discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext for discrimination.
Complainant's supervisor (S1) stated that, generally, Agency management would place a technician on a review to determine the cause of the technician's accuracy problems, and "to put in place information to insure that cases are processed correctly. Reasons for reviews and procedures to address case accuracy problems apply to all technicians." S1 stated that Complainant was assigned a 30-day 100-percent review because of an Agency assessment of poor performance. Specifically, S1 stated that Complainant was given copies of her errors and "she was shown the incorrect information so that she could understand that her actions were incorrect. She disagreed with the reasons and stated the errors were not that bad. However, her errors affected money payments and incorrect notice errors being sent to claimants. This is not how our Payment Center serves our claimants." S1 stated that management followed the Agency guidelines when it placed Complainant on a 30-day 100-percent review.
S1 stated that because Complainant made numerous errors which prevented her work from being processed correctly, she assigned a named specialist (SS) to work with Complainant. S1 stated, however, Complainant did not work well with SS and that Complainant had "stated he [SS] did not know what he was doing. She also stated he was giving information that produced errors in her work. However, [SS] was not incorrect, but instead he was actually providing the Complainant with correct information on how to input cases through the system." S1 stated that Complainant worked with SS for approximately one and a half months "before we addressed her concern and assigned a second specialist [named specialist (SS2)]." S1 stated that Complainant worked with SS2 for approximately six months and she "then made the same complaints against [SS2]. I took time to research her complaints and found the information [SS2] was giving her was correct....The Complainant is very argumentative when presented the documentation of her errors, does not know how to process cases and does not process information provided to her about how to handle cases."
S1 stated that management did not discriminate against Complainant based on her sex, color, age, and prior protected activity. S1 stated that Complainant was placed on a review "because she did not understand how to process her cases correctly. She was given a great deal of help, but did not improve. Her poor job performance and her inability to comprehend SSA policies/procedures formed the reasons for her review."
The Deputy Operations Manager (D1) stated that Complainant was placed on a 30-day 100-percent review "because her work was deficient...the Complainant was unhappy about being placed on review and felt she was being picked on. However, the statistics generated from her handling of her work products formed the basis for the decision of deficiency."
D1 stated that in 2000, Complainant was provided training for her Claims Authorizer position. D1 further stated that in 2007, Complainant was on a management detail of Assistant Module Manager but returned to her Claims Authorizer position in May 2008 due to poor performance. D1 stated that at that time, Complainant requested to be placed in a Claims Authorizer training class "because, after being away for about a year while on detail, the Complainant felt she might have lost some of her training for her Claims Authorizer position. The Claims Authorizer class we had at that time was already in session so we put the Complainant in the September 2008 Claims Authorizer class. After a few days in this case, the Complainant refused the training because she stated she already knew the material that was being taught. [Named Agency official] and I let the Complainant know that this was the last opportunity to take this class."
The Module Manager (MM) stated that when Complainant returned to her Claims Authorizer position from a management detail, she was given one-on-one mentoring refresher training with a Senior Claims Processing Specialist (SCPS) "four to six weeks. This refresher training was provided because she had been at another position for an extended period of time. She was given this training in lieu of official training because at the time there were no CA classes being held. When we received word that a nine-month CA class had started, the Complainant was given the opportunity to attend. After attending a couple of the sessions, the Complainant decided not to attend. She decided that she did not need this training. She requested that she be removed from the class. I informed her that I would need something documented before I would be able to release her from the class. The Complainant provided a letter that she had composed, signed and had a Union member sign also. She was removed from the additional training at that time."
Further, MM stated that Complainant was placed on a 30-day 100-percent review "to ensure her cases would be processed accurately. She was informed in a meeting that her cases would be reviewed because of the numbers of consistent errors she was making. The Complainant stated it was not her fault the cases were incorrect, and that it was everyone else's fault but hers. She stated she felt she was being set up and that there was a conspiracy going on against her personally." Moreover, MM stated that management's decision to place Complainant on a review had nothing to do with her sex, color, age, and prior protected activity.
The Assistant Module Manager (AMM) stated that during the relevant time, Complainant reported to him if S1 was not available. AMM stated that Complainant was placed on a 30-day 100-percent review because of her performance. Specifically, AMM stated that "issues were raised by her co-workers on how she processed cases and that incorrect information was being given to co-workers."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant, on appeal, argued that the EEO Investigator conducted an inadequate investigation by not obtaining significant witness statements and leaving out important evidence from the investigative file. We note Complainant's extensive arguments on appeal, which include but are not limited to purported deficiencies in the investigation, the Agency's purported determination relying upon evidence not of record; and the Agency's purported failure to review the evidence in the light most favorable to Complainant. We have reviewed Complainant's appellate arguments but nonetheless determine that the Agency properly conducted an adequate investigation of the instant complaint. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision regarding claim 1 because the preponderance of the evidence of record does not establish that discrimination occurred.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
January 11, 2013
__________________
Date
1 Regarding claim 2, Complainant has asserted on appeal that "...even though this allegation [is] addressed in another complaint, [it] provides background and context to this complaint. . ." Because Complainant has acknowledged that Claim 2 was raised in a prior complaint, and the record so supports this acknowledgement, we will not address the Agency's dismissal of this matter.
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0120113783
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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