01A10362
05-11-2001
Betty D. Hull, Complainant, v. William A. Halter, Acting Commissioner, Social Security Administration, Agency.
Betty D. Hull v. Social Security Administration
01A10362
May 11, 2001
.
Betty D. Hull,
Complainant,
v.
William A. Halter,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A10362
Agency No. 96-0333-SSA
Hearing No. 120-A0-3229X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against on the basis of
disability (back problems, cancer, and stress) when:
(1) on April 17, 1996, she learned that she had not been selected for
the position of Hearing Office Clerk, GS-986-4/5/6, which was posted
under Vacancy Announcement No. OC-95-44;
from March 14 - 24, 1996, she was subjected to harassment, which was
designed to make her seek disability retirement when: (a) on March
14, 1996, her request for forty (40) hours of advanced sick leave
for the period of March 4-8, 1996, was denied; (b) on March 22, 1996,
her request for a hardship check was denied; and (c) on March 25, 1996,
she was issued an unfair Leave Counseling letter; and on March 26, 1996,
her supervisor (Supervisor) refused to amend the Leave Counseling letter.
The record reveals that complainant, an Automation Clerk, GS-4, at the
agency's Office of Hearings and Appeals in Roanoke, Virginia, filed a
formal EEO complaint with the agency on May 29, 1996, alleging that the
agency had discriminated against her as referenced above. Complainant
then applied for disability retirement which was approved on July 23,
1996. At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ assumed for the purposes of summary disposition that complainant
was a qualified individual with a disability. Assuming, arguendo,
that complainant is an individual with a disability, the AJ concluded
that the agency articulated legitimate, nondiscriminatory reasons
for its actions. The agency showed that it selected the best person
(Selectee) for the Hearing Office Clerk position, noting that Selectee
was a �fantastic employee.� As to the claim of harassment, the AJ found
that complainant failed to show that the incidents created a hostile work
environment. Further, the AJ noted that the agency provided legitimate,
nondiscriminatory reasons for each action. The AJ concluded that the
agency denied complainant's request for advanced sick leave because
she failed to provide enough information to her supervisor in order to
complete the process for granting her the sick leave. The AJ noted
that complainant admitted that she merely signed a sick leave slip
without any additional information and when complainant provided the
information, the leave was granted. As to claim (2)(b), the AJ found
that the agency showed that it did not issue the hardship check to
complainant because she did not meet the requirements for obtaining it.
Finally, as to complainant's claim regarding the counseling letter,
the AJ found that complainant was issued the letter based upon her
failure to comply with the agency's leave procedure. In particular,
the AJ noted that complainant admitted that she would not request
in advance of an appointment because she merely forgot to do so and
the agency acted based upon her inappropriate conduct. Accordingly,
the AJ determined that the agency met its burden. The AJ found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
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 does not
sit as a fact finder. Id. 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. A disputed 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, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an
AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission finds that the AJ correctly
determined that there were no genuine issues of material fact and that
summary judgement was appropriate.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were
motivated by discriminatory animus toward her disability and/or
constituted harassment. We discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 11, 2001
__________________
Date