0120080332
04-15-2010
Carolyn Y. Singleton-Grant, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Carolyn Y. Singleton-Grant,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080332
Hearing No. 410-2007-00186X
Agency No. 2001-0508-2006101994
DECISION
On October 24, 2007, complainant filed an appeal from the agency's
on September 20, 2007, final order concerning her 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUES PRESENTED
Whether the agency discriminated against complainant because of her
asserted disability (neurosis or panic disorder) when, during the
duration of her employment with the agency (October 2004 to June 2006),
the agency assigned her duties outside of, and in addition to, those in
her job description.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a GS-6 Lead Medical Supply Technician assigned to the Supply Process
Distribution Service at the Atlanta VA Medical Center in Decatur, Georgia.
The record reveals that complainant was asked to assist a supervisor
in meeting his goals. To that end, she contends, she was asked to
deliver medical supplies to satellite offices and prepare a crash cart.
Complainant maintains that she became aware in February 2005 that some of
these duties were not within her job description. Complainant asserts
that she has a mental disability (neurosis or panic disorder1) which
is aggravated by stress and the assignment of these additional duties
caused her to experience extreme anxiety and migraine headaches.
On May 9, 2006, complainant filed a formal EEO complaint alleging that
she was discriminated against on the basis of disability when she was
assigned to work additional duties that were outside of her position
description. At the conclusion of the investigation, complainant was
provided with a copy of the report of investigation and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing.
Over the complainant's objections, the AJ assigned to the case granted
the agency's June 12, 2007, motion for a decision without a hearing and
issued a decision without a hearing on September 24, 2007. The AJ found
that complainant failed to prove that she was discriminated against
on the basis of disability because she failed to show that she was an
individual with a disability as defined by the Rehabilitation Act. The AJ
also found that complainant failed to show that her condition affected a
major life activity. Further, the AJ found that the supervisor involved
in this complaint was unaware of complainant's condition2 and therefore
could not have taken actions against her based on disability. Finally,
the AJ found that complainant failed to establish a prima facie case of
disparate treatment as she failed to show that other similarly-situated
employees were treated more favorably. The AJ noted that the agency
provided evidence which showed that other Lead Medical Supply Technicians
have performed, and continue to perform, the same duties as were assigned
to complainant. Accordingly, the AJ found that complainant failed to
show that she had been discriminated against based on disability.3
The agency subsequently issued a final order fully adopting the AJ's
finding that complainant failed to prove that she was subjected to
discrimination as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, complainant provided documentation which showed that she was
classified as disabled by the VA.4
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).
After a careful review of the record we find that the AJ's issuance of a
decision without a hearing was appropriate. The record has been adequately
developed, complainant was given notice of the agency's motion to issue
a decision without a hearing, she was given an opportunity to respond to
the motion, she was given a comprehensive statement of undisputed facts,
and she had the opportunity to engage in discovery. We find that, even
if we assume all facts in favor of complainant, a reasonable fact finder
could not find in complainant's favor, as explained below. Therefore,
no genuine issues of material fact exist.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
We find that complainant has not demonstrated that she was subjected
to discrimination based on her disability. The Commission also finds
that the AJ correctly issued a decision without a hearing as there
are no material facts at issue in this case. Notwithstanding, the
Commission finds that even if we assume arguendo, without so finding,
that complainant is an individual with a disability, the record reveals
that agency management was not aware of complainant's disability.
Complainant admits that she did not disclose her condition to the agency,
and acknowledges that it did not interfere with her ability to perform
her job duties. Moreover, we find that complainant has not shown that
other employees not of her protected class were treated more favorably.
The agency stated that other Lead Medical Supply Technicians have
performed, and continue to perform, the same duties as were assigned
to complainant. Moreover, the record reflects that the duties that
complainant was asked to perform were within her job description.
The agency explained that complainant was given these duties at the
time because there was a severe staff shortage and supplies needed to
be delivered to the satellite offices.
Further, the Commission finds that complainant has not presented any
evidence which suggests that the agency should have offered her a
reasonable accommodation. The evidence clearly shows that management
was not aware of her asserted disability. Nor was there any evidence
presented which suggests that complainant had a problem completing her
work assignments which might have put management on notice that there
was a need for accommodation. Finally, with respect to complainant's
contentions on appeal, the Commission notes that complainant's status
as a disabled veteran does not of necessity mean that she is "disabled"
within the meaning of the Rehabilitation Act. Complainant's status as
an individual with a disability is not in issue in this disposition on
appeal. Accordingly, we find that complainant has failed to show that
the agency's reasons for assigning her work duties were pretext for
discrimination based on disability.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant has not established that the agency discriminated against
her as alleged. Accordingly, the final agency order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 15, 2010
Date
1 According to complainant the neurosis affected her ability to
concentrate and caused her to suffer from confusion, panic, migraine,
headaches, and extreme fear. Complainant took the medication Paxil on
a daily basis to treat this condition.
2 Complainant's supervisor was aware that complainant had diabetes but
was not aware that complainant suffered from a mental disability.
3 The AJ noted that absent discrimination, any assignment of duties
outside the scope of an employee's job requirements should be addressed
via a desk audit; while complainant requested a desk audit, she resigned
before it was conducted.
4 Complainant also noted that she has Peripheral Vascular Disease and
Diabetes, but she did not raise these conditions in the instant complaint.
Complainant repeatedly stated that she was discriminated against because
of her mental impairment rather than her physical impairments.
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0120080332
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080332