0120102199
09-10-2010
Benjamin Alvardo, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Benjamin Alvardo,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102199
Agency No. ATL080872SSA
DECISION
On April 28, 2010, Complainant filed an appeal from the Agency's April 23, 2010, final decision concerning his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
1. Whether the AJ properly dismissed Complainant's hearing process as a sanction for failure to prosecute; and
2. Whether the Agency properly found that Complainant was not discriminated against on the bases of age and physical disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative at the Agency's Teleservices Center (TSC) in Fort Lauderdale, Florida, where he had been employed since 1999. Investigative File (IF), Ex. 1.
The record indicates that Complainant is one of eight visually impaired employees who work at the Agency's Fort Lauderdale TSC facility. IF, Ex. 9 at 2. Five of these employees are blind, while three employees, including Complainant, have limited vision. Id. The record indicates that the Agency provides several accommodations to employees with vision impairments. Specifically, the record indicates that the Agency utilizes the MAGIC (Magnification) computer program, which magnifies the print size on a computer to help low-vision employees read the screen. IF, Ex. at 2. Moreover, the Agency utilizes a program called JAWS (Job Access with Speech), which allows employees to hear words as the cursor moves across the monitor and is primarily used by employees who are completely blind. IF, Ex. 4 at 10. The Agency's Fort Lauderdale facility also employs four full-time "Readers" who assist visually impaired employees with reading their computer screens when needed. IF, Ex. 8 at 1. The record indicates that the Agency assigned one of its full-time Readers to Complainant in June 2008. IF, Ex. 9 at 1. The record also reflects that while the Reader was permitted to assist other employees as required, she was primarily assigned to and made available to assist Complainant. IF. Ex. 9 at 1-2.
The record further indicates that Complainant, along with all Contact Representatives, was required to utilize a program called Computer Help Information Program (CHIP) during phone calls in order to provide customers with accurate information. Id. In August or September 2008, the TSC Manager and Complainant's third-level supervisor (S3), male, age 56, disability status unknown, held a meeting with the vision-impaired employees. At that meeting, S3 and Complainant's second-level supervisor (S2), TSC Deputy Manger, female, age and disability status unknown, discussed training issues with the employees. Id. Subsequent to the meeting, Complainant e-mailed S3 with a request to attend a CHIP training program for JAWS users in September 2008. Id. The record indicates that while the JAWS program was intended only for those that are completely blind, S3 allowed Complainant to attend the training. Id. Following the JAWS training, Complainant requested and was grated permission to attend a MAGIC training session in November 2008. Id. Further, the record indicates that the Agency's Center of Disability Services approved Complainant's request to receive an additional two weeks of JAWS training in January 2009 after Complainant submitted another request for accommodations. IF, Ex. 8 at 2.
At his October 2008 annual performance evaluation, Complainant's first line supervisor at the time (S1), female, age and disability status unknown, assigned him a "Fully Satisfactory" rating, although she noted that Complainant continued to make an excessive amount of errors and needed to better utilize CHIP. IF, Ex. 12 at 2. At a supplemental performance discussion in March 2009, Complainant's new first-level supervisor (S-1B), male, disability status and age unknown, also noted Complainant's high error rate and failure to use CHIP effectively. IF, Ex. 11 at 2. On April 23, 2009, Complainant had his mid-year performance evaluation with S1-B, who again noted Complainant's error rate, specifically referencing the fact that he had made nine service or payment errors out of 30 service observations. IF, Ex. 9 at 2. S1-B advised Complainant to better utilize CHIP and improve the accuracy of his work. Id.
On November 5, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (visually impaired) and age (64) when:
1. He was denied a reasonable accommodation (training and a fulltime reader); and
2. He was harassed when S3 informed him that if did not meet the required performance standards he could be placed on a Performance Assistance Plan (PAP) and he could lose his job; he is not provided sufficient time to complete his work; and management officials made comments related to his performance and age respectively.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant elected to have a hearing. Subsequently, the AJ sanctioned Complainant in accordance with 29 CF.R. � 1614.109, for his "Failure to Prosecute," and ordered Complainant's complaint dismissed from the hearing process, and to be remanded to the Agency for issuance of a final agency decision based upon the evidence contained within the record. The Agency subsequently issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, as argued by his representative, Complainant maintained that the AJ improperly remanded his complaint to the Agency for a decision without a hearing.1 Complainant argued that he was denied a reasonable accommodation when management did not provide a full-time Reader. According to Complainant, he was occasionally provided a Reader to assist him with his work. Further, he contended that he was denied requested private training on the CHIP computer program. In this respect, Complainant averred that these issues resulted in his requiring extra time to complete assignments, which adversely impacted his rating. Complainant further contended that the Agency improperly introduced a revised performance evaluation system which discriminated against individuals with disabilities. Complainant also averred that management subjected him to harassment by not providing sufficient extra time to complete assignments. Finally, Complainant contended that S2 and S3 utilized the revised performance evaluation standards as means to justify removing him so as to increase productivity.
On appeal, the Agency acknowledged that Complainant is a qualified individual with a disability. The Agency averred, however, that management provided Complainant with reasonable accommodations. Specifically, the Agency noted that it provided Complainant with a full-time reader in June 2008. The Agency also asserted that Complainant attended multiple training sessions on the MAGIC and JAWS computer systems. The Agency averred that it provided Complainant with his requested accommodations. On these grounds, the Agency requested that the Commission affirm its final decision.
FINDINGS AND ANALYSIS
Initially, we address Complainant's contention that the AJ improperly dismissed his Complaint from the hearing process. In this regard, we note that the AJ remanded Complainant's complaint to the Agency for a final decision as a sanction for Complainant's "Failure to Prosecute." Agency Ex. A. Specifically, the record indicates that Complainant and his representative failed to attend the AJ's prehearing conferences as stipulated. The record indicates that the AJ issued two Orders, dated September 25 and December 16, 2009, in which he directed the parties to appear for a telephonic prehearing conference scheduled for February 10, 2010. Agency counsel arranged and appeared at the prehearing conference ("conference") on the scheduled date and time. However, the record indicates that neither Complainant nor his representative appeared for the conference at the scheduled date and time. The AJ determined that Complainant and his representative disregarded his repeated orders and ignored their opportunity to put forth their reasons for the non-compliance. The AJ further found that Complainant demonstrated a willful failure to prosecute his own claim first by failing to provide his recent mailing address or any other pertinent information to him and second by failing to appear for the prehearing conference. Therefore, the AJ sanctioned Complainant in accordance with 29 CF.R. � 1614.109. He ordered Complainant's complaint dismissed from the hearing process, and remanded it to the Agency for issuance of a final agency decision based upon the evidence contained within the record. We find that Complainant failed to provide any arguments or explanation justifying his failure to comply with the AJ's orders. Accordingly, we find that the AJ did not abuse his discretion by dismissing Complainant's hearing request.
Next, we note that as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. EEO Management Directive for 29 C.F.R. Part 1614, Ch. 9 � VI. A. 3. (1999) (MD-110). On appeal, Complainant provides no justification for introducing the following new contentions: (i) the Agency utilized a new performance rating system as a means of removing him; and (ii) management intended to remove him, along with all disabled employees, so as to increase productivity. Consequently, we decline to consider these newly presented claims. Complainant is advised that if he wishes to pursue any additional claims, he should contact an EEO counselor.
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Claim 1 - Reasonable Accommodation
According to the Commission's regulations, federal agencies are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o). As noted above, the Agency acknowledged that Complainant is a qualified individual with a disability.
Upon review of the record, we find that Complainant has not shown that the Agency denied him a reasonable accommodation. Complainant averred that management denied him a full-time Reader to assist him with his work duties. The record indicates, however, that the Agency provided Complainant with a full-time Reader in June 2008. IF, Ex. 8 at 2. In this regard, the record reflects that Complainant was also provided with an opportunity to participate in interviewing the prospective Reader. IF, Ex. 12, at 2. The record also indicates that while Complainant's assigned Reader was free to assist other employees intermittently, she was primarily assigned to and available for Complainant and was not required to share her time with other visually impaired employees. Id. Even assuming Complainant's Reader occasionally assisted other employees, Complainant has not shown that having a Reader exclusively assigned to him was necessary to enable him to perform his job functions. Complainant has presented no evidence that being granted the aforementioned assistance was an ineffective accommodation.2
With regard to his contention that management denied his requests for additional private training, we find no evidence that such a request was made or that it was denied. There is no dispute, however, that Complainant was offered and took advantage of multiple training opportunities on both the MAGIC and JAWS computer systems. Specifically, the record indicates that in September 2008, S3 approved Complainant's request to attend a five-day training session for JAWS users, which Complainant attended later that month. IF, Ex. 9 at 2. Further, the record indicates that Complainant received CHIP training for MAGIC users in November 2008, followed by additional JAWS training in January 2009. Accordingly, because the record indicates that management granted Complainant's accommodation requests, we find that he fails to show that he was denied a reasonable accommodation.
Claim 2 - Harassment
Complainant claims that he was subjected to harassment on the bases of his age and disability when: (i) S3 informed him that if did not meet the required performance standards he could be placed on a PAP and possibly terminated; (ii) during Complainant's April 2009 performance evaluation, S1-B stated that he "was not on the phone all the time" and "need[ed] to be on the phone answering questions from the public;" and on various occasions, (iii) management officials stated that Complainant "looked young today" or "sporty today." IF, Ex., 8, at 2-3.
Regarding claims (i) and (ii), for the most part, we find that, even if true, these matters constitute nothing more than isolated, routine supervisory interactions. The Commission has repeatedly found that unless the conduct is very severe, a group of isolated incidents will not be regarded as creating a hostile work environment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996). A supervisor's remarks on several occasions unaccompanied by any concrete action are usually not sufficient to constitute harassment. Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996).3
With respect to claim (iii), Complainant submits no evidence, other than mere conjecture, in support of his contention that he was subjected to harassing comments. As indicating by their respective testimony, all applicable management officials deny having made these comments. IF, Exs. 9, 10, 11, and 12. Further, we find that even assuming that the incidents occurred, there is no persuasive evidence that they indicate discriminatory animus with regard to Complainant's protected classes.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision finding no discrimination.
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
_____9/10/10_____________
Date
1 The Commission notes that Complainant's appeal brief is incorrectly titled "Complainant's Response to Agency's Motion for Decision without Hearing." See Complainant's Brief. The record indicates that the Agency did not submit a motion for a decision without a hearing. Rather, the record indicates that the AJ dismissed Complainant's hearing process and remanded his complaint to the Agency for a final decision due to Complainant's failure to prosecute. Agency Ex. A.
2 See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) (an employer may choose among accommodations as long as the chosen accommodation is effective).
3 We do note, however, that S3 denied making these statements. Also, although S1-B testified that he informed Complainant that he had a high error rate concerning the information he presented to the public regarding the Agency's policies and procedures, he testified that he never informed Complainant that he might be placed on a PAP or could lose his job.
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0120102199
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102199