0120123279
05-29-2015
Complainant v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120123279
Hearing No. 550-2010-00025X
Agency No. SF-09-0170-SSA
DECISION
On August 27, 2012, Complainant filed an appeal from the Agency's August 1, 2012, final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). Upon review, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented before the Commission are:
1. Whether there are genuine issues of material fact that require a hearing before an Equal Employment Opportunity Administrative Judge (AJ);
2. Whether the AJ properly found that Complainant failed to prove discrimination based on race or age when her request to transfer to an office closer to home was denied;
3. Whether the AJ properly found that Complainant failed to prove discrimination based on disability when her July 30, 2008, and December 11, 2009, reasonable accommodation requests to transfer to an office closer to home were denied.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative at the Agency's Walnut Creek, California, District Office. On April 19, 2009, she filed an EEO complaint alleging discrimination on the bases of race (Asian/Pacific Islander), disability (vertigo, sleep apnea, depression, panic attacks), and age (51) when the Agency denied her request to transfer to a facility closer to her home.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ, or alternatively, a final decision from the Agency based on the report of investigation. Complainant timely requested a hearing. Therefore, her case was forwarded to the appropriate EEOC District Office and assigned to an AJ.
On December 10, 2010, the Agency filed a Motion for Summary Judgment to which Complainant responded on January 7, 2011. After holding a telephone conference with both parties to discuss several questions she had about the record, the AJ received additional documents from the Complainant and the Agency. Following several extensions of the discovery period, the AJ issued a decision without a hearing finding there were no material facts in dispute and that Complainant had failed to prove discrimination as alleged. Subsequently, the Agency issued a final order adopting in full the AJ's findings. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ should have held a hearing because there are unresolved issues which require an assessment as to the credibility of various witnesses. Complainant further argues that the Agency's refusal to transfer her to a facility closer to her home so that she could be closer to her treating resources effectively denied her an accommodation. Specifically, she argues that by using less leave and being closer to her treating sources, she would have more availability to perform the essential functions of her job. See Complainant's Brief at 6. Complainant remains silent as to the merits of her age and race claims. The Agency argues that the AJ's decision is factually and legally correct; thus, there is no need to remand the case to an AJ for a hearing.
STANDARD OR REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and the Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (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").
ANALYSIS AND FINDINGS
1. Decision Without A Hearing (Summary Judgment)
Initially we consider whether it was appropriate for the AJ to have issued a decision without a hearing on the record in this case. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. This means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ can order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find that the record was adequately developed, that no genuine issues of material fact remain, and that no credibility determinations are necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. Thus, we have no reason to disturb the AJ's decision to issue a ruling without a hearing.
2. Race and Age Discrimination
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume Complainant has established prima facie cases of race and age.
We now look to see whether the Agency stated legitimate, nondiscriminatory reasons for its action. Here, the Agency asserted its staffing needs as its reason for not reassigning Complainant. The Agency stated that the Walnut Creek office (i.e., the office from which Complainant wanted to be reassigned) was a busy office visited by many customers. The Agency further stated that the office into which Complainant wanted to be reassigned was a smaller office.
Complainant must now present evidence showing that the Agency's stated reasons are pretexts based on her race and age. In order to meet this burden of proof, Complainant presented no evidence, other than her own belief, to demonstrate that her race and age were factors in the decision deny her reassignment request. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant has failed to meet her burden to show that the Agency's stated reasons were pretextual.
3. Disability and Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with a disability. See generally 29 C.F.R. Part 1630. In order to establish that Complainant was denied a reasonable accommodation. Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002).
Under the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. For purposes of analysis we will assume that Complainant is an individual with a disability.
Regarding this aspect of Complainant's claim, we note that on July 30, 2008, and December 11, 2009, Complainant requested a permanent transfer to an office closer to her home. See Administrative Judge's (AJ) Decision at 13, 14. Complainant's medical evidence included a letter, dated November 2007, from Dr. M, recommending that Complainant be granted a three-month transfer so that her condition could stabilize and so she could attend medical appointments. The Agency granted this temporary transfer from August 4, 2008 to September 26, 2008.
In a letter dated December 23, 2009, Dr. P stated that Complainant should be permanently transferred from the Walnut Creek office to the Fairfield office because she was being treated for a chronic medical condition necessitating frequent visits to the David Grant Medical Center located on the Travis Air Force Base. Dr. P explained that such an accommodation would allow Complainant to attend medical appointments.
On appeal, Complainant states that the purpose of her requests to transfer was to place her closer to her medical resources, which would enable her to use less leave in order to get medical treatment. Complainant explains that by using less leave and being closer to her treating resources, she would have more availability to perform the essential elements of her job. See Complainant's Brief at 6. We note, however, that the record reflects that Complainant performed at a high level without such accommodation. The AJ noted that in June 2010, Complainant earned a 100-percent timeliness rating even though she had been on leave for one week and performed extra duties. The AJ further noted that Complainant's typical timely ratings ranged from 94 to 98 percent. See AJD at 18-19.
We note that, in lieu of a permanent transfer, the Agency's Medical Officer suggested that the Agency might consider other arrangements, such as liberal leave to address any commuting problems. See AJD at 10. The Commission has found that the use of liberal leave may be offered by the Agency as a reasonable accommodation. See Renteria v. Dep't of the Air Force, EEOC Appeal No. 0120071044 (May 15, 2009) (finding, among other things, no discrimination where the agency granted the complainant liberal leave on occasions when she felt the weather would impact her ability to drive). Complainant is reminded that while protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See Complainant v. Dep't of Commerce, Appeal No. 0120120625 (Jul. 11, 2014) (citing Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17. 1994).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that this case presented no genuine issues of material fact, such that summary judgment was inappropriate; that Complainant did not prove discrimination based on race or age when her request to transfer to an office closer to her home was denied; and that Complainant did not prove discrimination based on disability when her July 30, 2008, and December 11, 2009, reasonable accommodation requests to transfer to an office closer to home were denied. Accordingly, we AFFIRM the Agency's final order.
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
May 29, 2015
Date
2
0120123279
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123279