William F. Krug, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionDec 13, 2005
01A45360 (E.E.O.C. Dec. 13, 2005)

01A45360

12-13-2005

William F. Krug, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


William F. Krug,

Complainant,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A45360

Hearing No. 160-2004-00057X

Agency No. 020467SSA

DECISION

JURISDICTION

On August 3, 2004, complainant filed an appeal from the agency's June

30, 2004 final order concerning his equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of 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 appeal is deemed

timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the

following reasons, the Commission AFFIRMS the agency's final order.

BACKGROUND

Complainant began employment with the agency on May 6, 2001 as a Contact

Representative at the agency's Boston Teleservice Center in Boston,

Massachusetts. Complainant was subject to a one-year probationary period

after being hired. Complainant filed a formal EEO complaint on August

26, 2003, alleging that he was discriminated against on the bases of

disability and age (54 years old) when:

1. The agency required complainant to justify his request for conversion

to part- time employment with medical documentation;

2. In March and April 2002, his supervisor denied his request for training

on procedures and systems that he had not been previously exposed to;

3. The agency did not permit complainant to make written rebuttals to

his supervisor's evaluations of his monitored calls; and

4. Effective May 3, 2002, the agency terminated complainant during his

probationary period.

Complainant alleges that in February 2002, he verbally asked the

Teleservice Center Manager (M1) to convert him from full-time to part-time

employment because he was experiencing discomfort and fatigue related

to his walking impairment. Complainant contends that M1 told him at

that time that he would need to submit medical documentation to be

converted to part-time. Complainant stated that his physician refused

to write a letter to the agency but instead requested a Department

of Labor Family and Medical Leave Act medical certification form.

After complainant obtained the form from the Assistant Manager (AM1),

his physician completed the form and returned it to the agency. AM1 then

asked complainant to specify in writing the days he wanted to work, which

complainant did in a letter dated April 2, 2002. The agency approved

the reduced part-time schedule for complainant effective April 7, 2002.

M1 stated that he requested medical documentation to reduce complainant's

work hours to ensure that tour changes were made equitably and fairly.

AM1 stated that she requested medical documentation from complainant

because complainant based his request on a medical need and needed to

demonstrate his need for the requested schedule change.

In claim 2, complainant contends that management denied his request for

training on the Customer Help and Information Program (CHIP). CHIP is a

software system used by the agency that allows contact representatives to

access data in a timely, consistent, and accurate manner for customers.

Complainant's supervisor responded that he never received any requests for

CHIP training from complainant and provided complainant with a training

guide so that he could familiarize himself with CHIP. The supervisor

further stated that all new hires, including complainant, were expected

to use CHIP for all calls.

Beginning in March 2002, complainant's supervisor conducted a number

of service observations of complainant's calls. On March 6, 2002,

the supervisor presented complainant with written observation notes

for four calls conducted on that date. In the notes, the supervisor

questioned if complainant was using CHIP because of his deficient

responses and advised complainant in all-capital letters "USE CHIP."

On March 29, 2002 and April 15, 2002, complainant's supervisor again

observed complainant's calls and cited him for not using CHIP to obtain

necessary information. M1 testified that use of CHIP was mandatory for

all contact representatives hired when complainant was hired, although

employees hired earlier had the option to use alternative resources.

M1 further stated that complainant and all other representatives hired

at the same time were given eight weeks of training on CHIP and a mentor

after the training. M1 stated that any trainee having difficulties with

CHIP could request more training through their mentors or supervisors.

Complainant maintains that he did not use CHIP at all times because CHIP

was not mandated for Contact Representatives until October 2002 and more

experienced contact representatives did not use CHIP.

Complainant's supervisor stated that he was unaware of the policy on

rebuttals of service observations because he had just arrived at the

Teleservice Center when complainant requested to rebut the observations.

M1 also stated that complainant's supervisor was unaware that rebuttals

could be submitted to supervisor evaluations because he was new to the

Teleservice Center, but once he informed complainant's supervisor that

rebuttals were allowed, complainant was immediately allowed to submit

a rebuttal.

On April 25, 2002, M1 informed complainant of his termination effective

May 3, 2002. In a letter to complainant, the agency stated that the basis

for his termination during his probationary period was that complainant

failed to successfully demonstrate his ability to perform his duties

as a teleservice representative. The agency noted that complainant's

supervisor observed complainant not using CHIP on several occasions,

resulting in poor public service to callers. The letter noted that

complainant had been directed several times to use CHIP on his calls, but

refused to do so. During the investigation, agency officials reiterated

that complainant's failure to use CHIP resulted in his termination.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. On May 6, 2004, the agency filed a Brief in Support

of Summary Disposition Finding No Discrimination, to which complainant

responded on May 24, 2004. On June 17, 2004, the AJ issued a decision

without a hearing, finding no discrimination. The agency subsequently

issued a final order fully adopting the AJ's finding.

CONTENTIONS ON APPEAL

On appeal, complainant argues that the record was not been adequately

developed for summary disposition because at the time he submitted his

brief opposing the agency's motion for summary disposition, he had not yet

received responses to his discovery requests. Complainant further argues

that the AJ improperly found no discrimination, although he provided

evidence that the agency's actions were motivated by discriminatory

animus.

STANDARD OF 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 EEOC Management Directive 110, Chapter 9,

� VI.B. (November 9, 1999). (providing that an administrative judge's

"decision to issue a decision without a hearing pursuant to [29 C.F.R. �

1614.109(g)] will 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 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 Chapter 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

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. 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.

If a case can only be resolved by weighing conflicting evidence, issuing

a decision without holding a hearing is not appropriate. 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. Department of Defense, 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. In the hearing context, this means that the

administrative judge 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

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

In a claim such as the instant one which alleges disparate treatment,

and where there is an absence of direct evidence of such discrimination,

the allocation of burdens and order of presentation of proof is a

three-step process. Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 142 (2000) (applying the analytical framework described in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA

disparate treatment claim). First, complainant must 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.

Kimble v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22,

2001).

Assuming arguendo and without finding that complainant is an individual

with a disability entitled to coverage under the Rehabilitation Act,

we find that complainant failed to provide any evidence that would

raise an inference of disability or age discrimination for any of

his claims. Particularly, complainant failed to provide any evidence

that any similarly situated individuals not within his protected classes

were treated more favorably than he with respect to the alleged matters.

Specifically, for claims 1and 3, complainant notes that a co-worker stated

that other employees were not required to submit medical documentation

when requesting a reduction in duty hours and other employees were allowed

to submit rebuttals to service evaluations. However, this employee's

general assertion did not name any comparative employees or allege that

there was a discrepancy in treatment based upon age or disability.

Complainant also alleges that he raised an inference of disability

discrimination for claim 4 because non-disabled probationary employees

were not terminated. However, complainant did not establish that these

non-disabled probationary employees refused to use the CHIPS system

or otherwise had job performance problems. We find that complainant

has failed to provide any evidence from which a reasonable fact-finder

could conclude that complainant raised an inference of age or disability

discrimination for claims 1 - 4.

We further note that claim 1 could also be analyzed as a reasonable

accommodation claim.1 However, we conclude that the agency reasonably

required complainant to submit medical documentation to assess his need

for a conversion to part-time. Once complainant submitted the requested

medical documentation on April 2, 2002, the agency approved complainant's

requested work schedule change on April 7, 2002. Assuming arguendo that

complainant was entitled to reasonable accommodation, we find that the

agency met its obligation to provide one.

Finally, complainant argues that the AJ improperly issued a decision

without a hearing because his response to the agency's motion was due

on May 24, 2004, while complainant's discovery requests were pending.

However, we note that complainant received responses to his discovery

requests on June 9, and 15, 2004 and incorporated the information

contained in the responses into his appeal brief. As discussed above, we

find that even with the information contained in the discovery responses,

complainant failed to provide any evidence that would defeat the agency's

motion for a decision without a hearing because he has not presented

any evidence that would establish prima facie cases of discrimination

for his claims.

Therefore, we find that the AJ properly issued a decision without a

hearing finding no discrimination on the instant complaint.

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 order,

because the Administrative Judge's issuance of a decision without a

hearing was appropriate and the preponderance of the record evidence

does not establish that discrimination occurred.

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

__December 13, 2005____________

Date

1 Complainant's request for a change in schedule in order to alleviate

discomfort related to his medical condition was a request for reasonable

accommodation insofar as he was informing his employer that he needed an

adjustment at work for a reason related to a medical condition. See EEOC

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under

the Americans With Disabilities Act (rev. Oct. 17, 2002) at question 1.

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01A45360

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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01A45360