0520120526
12-12-2012
Sylvia R. Cade, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Sylvia R. Cade,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Request No. 0520120526
Appeal No. 0120120928
Agency No. DAL110386SSA
DENIAL
Complainant timely requested reconsideration of the decision in Sylvia R. Cade v. Social Security Administration, EEOC Appeal No. 0120120928 (May 22, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
BACKGROUND
Complainant was assigned in May 2009, to a temporary "not-to-exceed" (NTE) two-year appointment as a GS-12, Management Analyst at the Agency's ODAR Regional Office facility in Dallas, Texas. Complainant's permanent position was a GS-9 Management Operations Specialist position. Complainant alleged that that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when: 1. on September 12, 2010, she was reassigned from her temporary GS-12, Management Analyst position to a GS-9, Management Operations Specialist position; and 2. the Agency did not provide her with a different work space after she maintained that she was having respiratory issues due to working in the open area.
The Agency issued a FAD which found that Complainant failed to show that she was subjected to discrimination. Complainant appealed the Agency's decision to the Commission. The previous decision found that Complainant failed to show that there was direct evidence of reprisal discrimination with respect to her argument that her fourth-line supervisor, who was the Chief AJ, told her that she had been reassigned based on her prior EEO activity. The Commission noted that the Chief AJ had submitted a statement where she indicated that she never said this to Complainant. Accordingly, the Commission found that Complainant's direct evidence argument failed. The Commission also found that management witnesses provided legitimate, nondiscriminatory reasons for its actions. As for the reassignment, management witnesses stated that Complainant was reassigned out of her NTE GS-12 position because of performance and conduct issues. The record contained a long list of incidents which management proffered as examples of problems relating to Complainant's work performance or her conduct during her time in the GS-12 position. Based on these concerns, Complainant was reassigned out of her GS-12 position. Complainant was returned to her last permanent position which was at the GS-9 level. As to Complainant's request for a different work space, management witnesses indicated that Complainant provided a note from her doctor's office which merely stated that Complainant needed to move because of her cough. The Agency found that the information was not sufficient to justify her request. Agency officials requested additional documentation. However, Complainant failed to respond to the Agency's request for additional information. As such, officials did not grant Complainant's request for a different work space. The Commission found that Complainant failed to show that the Agency's reasons were pretext for discrimination. The Commission affirmed the Agency's FAD which found that Complainant failed to show that she was discriminated against as she alleged.
REQUEST FOR RECONSIDERATION
In her request for reconsideration, Complainant contends that if she had a hearing the Chief AJ would have been able to testify at the hearing regarding her alleged statement that the Complainant's reassignment was based on her prior EEO complaint. Complainant also includes an email which she maintains establishes a nexus between her prior EEO activity and her reassignment as the email regarded the investigation of her EEO complaint and was forward to her chain of command. Additionally, Complainant contends that her performance appraisals for 2009, 2010, and 2011 show that she was performing at a satisfactory level at the GS-12 level. Moreover, Complainant alleges that she was converted to the permanent GS-12 position in May 2009 and the permanent designation was changed to temporary after she filed an EEO complaint in May 2010.
Among several arguments, the Agency asserts that Complainant has not shown that the appellate decision involved a clearly erroneous interpretation of material fact or law or that the decision will have a substantial impact on the policies, practices or operations of the Agency.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. First, we note the record does not show that Complainant ever requested an administrative hearing regarding this case; therefore, we find no error with regard to the failure of the Chief AJ to testify and Complainant cannot now request a hearing at this time. Further, we find that Complainant has failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Complainant has not provided any evidence which suggests that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. We note that the information that she provided, e.g., the performance appraisals, were in the original complaint and had been previously considered. Further, the email that Complainant provides is irrelevant to her request for reconsideration as management acknowledged in the complaint file that they were aware of her prior EEO activity but maintained that Complainant was reassigned based on her performance and conduct. Additionally, we note that the evidence does not show that Complainant was converted to a permanent GS-12 in May 2009. The evidence shows that Complainant's Not to Exceed position was extended on May 10, 2009, to include May 2010 to May 2011. There is no evidence in the record that supports her contention that a permanent offer was made to her. We find that Complainant has failed to show that she was subjected to discrimination as she alleged.
Accordingly, the decision in EEOC Appeal No. 0120120928 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
__12/12/12________________
Date
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0520120526
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120526