0120100006
04-04-2014
Complainant v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal Nos. 0120100006
0120100007
0120100008
Hearing Nos. 551-2008-00135X
551-2007-00116X
551-2008-00122X
Agency Nos. SEA-07-2326-SSA
SEA-06-2271-SSA
SEA-07-2078-SSA
DECISION
Complainant filed three appeals from the Agency's final order concerning her equal employment opportunity (EEO) complaints alleging 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 appeals pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.1
ISSUES PRESENTED
The issues presented are whether Complainant has demonstrated (1) that the EEOC Administrative Judge (AJ) improperly issued decisions without hearings regarding the complaints at issue herein; and that she was discriminated against when the Agency (2) failed to provide her reasonable accommodations,2 (3) did not provide her training opportunities, awards, and temporary promotions, and (4) did not select her for a series of vacant positions.
BACKGROUND
At the time of events giving rise to these complaints, Complainant worked as a Disability Examiner at the Agency's Regional Office of Quality Programs in Seattle, Washington. Complainant filed three formal complaints in which she claimed discrimination on the bases of sex (female), age (52), disability (physical), and retaliation regarding the actions listed in what has been identified as "Issues Presented." All three complaints were accepted for investigation.
At the conclusion of each 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. Complainant timely requested hearings, at which point all three cases were forwarded to the appropriate EEOC District Office and assigned to a single AJ.
After reviewing all three cases, the AJ determined hearings were not warranted and, over Complainant's objections, issued summary judgment decisions on July 22, 2009, August 10, 2009, and August 11, 2009. In all three decisions she found that Complainant failed to prove discrimination as alleged. The Agency subsequently issued a final order adopting all three AJ decisions. Complainant thereafter filed these appeals.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ's decision to issue summary judgment rulings deprived Complainant of the opportunity to submit testimonial evidence and to cross-examine Agency witnesses, who she claims gave conflicting testimony in other EEO cases. She further argues that the AJ allowed the Agency to unfairly withhold information that Complainant had requested that the Agency produce. Finally, she argues that the AJ castigated her in a telephone conference regarding her decision to file EEO complaints, and insists that she is limited in performing major life activities despite what the AJ and Agency found.3 For its part, the Agency requests that we affirm its decision to adopt fully the AJ's findings.
STANDARD OF REVIEW
In examining the matters contained in all three cases, 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 AJ'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 and are free to accept or reject the AJ's and the Agency's factual conclusions and legal analysis.
ANALYSIS AND FINDINGS
Summary Judgment Decisions
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 potentially outcome determinative.
After reviewing the record in all three cases, we find that each record is adequately developed, that no genuine issues of material fact remain, and that no fact-finding is necessary. We also find that Complainant was given ample notice, comprehensive statements of the undisputed facts in each case, and opportunities to respond. Thus, we have no reason to disturb the AJ's decisions to issue rulings without hearings. Complainant's assertion that Agency officials have given conflicting testimony in other EEO cases is immaterial to a determination as to whether a hearing was warranted on these complaints.
Reasonable Accommodation - EEOC Appeal No. 0120100006
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 further analysis we will assume, without so finding, that Complainant is an individual with a disability. Regarding this aspect of Complaint's claims, the AJ found the following relevant facts.
Complainant has the following medical conditions: inflammatory arthritis of multiple joints; osteoarthritis of the hands, thumbs, fingers, knees, back and neck; DeQuervain's tendonitis of both arms; and asthma. On January 29, 2007, she requested reasonable accommodations because of some of these conditions.
Specifically, Complainant requested voice-recognition software4 to decrease the amount of keyboarding in which she would have to engage in order to alleviate pain and avoid further damage to her fingers and thumbs. Complainant also requested a printer which allowed her to avoid getting up and down, thereby decreasing the amount of pain she experienced in her knees and feet. This request was made to the Agency's Center for Disability Services (CDS).
On February 6, 2007, CDS notified Complainant that it needed medical documentation establishing the duration and severity of Complainant's limitations. Soon thereafter, Complainant provided Agency management and CDS a medical document in which Complainant's physician recommended the voice-recognition software and noted that Complainant's keyboarding should be limited to a total of three hours per eight-hour workday. Complainant's physician did not provide a diagnosis or reference diagnostic tests. The document stated that Complainant's restrictions were effective until February 6, 2007.
On February 7, 2007, Complainant's physician sent a letter to Complainant's supervisor stating that Complainant was experiencing pain in both arms, wrists, and hands and recommending a reduction in keyboarding activities through the use of voice-recognition software. The supervisor told Complainant that she needed to send the letter to CDS directly.
On February 13, 2007, Complainant requested that CDS provide her a second adjustable flat-screen monitor, specifying an LCD monitor.5 The second (LCD) flat-screen monitor was recommended by her physical therapist to be better enable Complainant to maintain an ergonomic work posture during her work activities.
On March 13, 2007, CDS declined Complainant's request for the second flat-screen monitor, printer, and voice-recognition software because it had determined that the medical documentation provided by Complainant was insufficient to establish that Complainant was limited in a major life activity. In so doing, CDS noted that the medical documentation suggested that Complainant's medical limitations were temporary.
On March 20, 2007, Complainant requested that CDS reconsider its decision. In support of this request, Complainant submitted to CDS additional medical documentation including a copy of the February 7, 2007, letter that her supervisor had advised her to send to CDS directly. On April 26, 2007, she submitted a letter from a different physician (Physician 2) stating that Complainant had been diagnosed with degenerative joint disease of the hands and cervical spine. In the letter, Physician 2 concurred with Complainant's physician that Complainant needed a reduction in keyboarding which could be achieved with voice-recognition software.
CDS forwarded the additional medical documentation to the Agency's Medical Office, and on May 11, 2007, was notified by the Medical Officer that Complainant's condition did constitute a disability. On May 16, 2007, CDS approved the voice-recognition software,6 the printer, and a 19-inch LCD (flat screen) monitor. In June 2007, the Agency installed these assistive devices at Complainant's workstation.7
In November 2007, Complainant's supervisor arranged a vocational rehabilitation assessment for Complainant. During this assessment, Complainant's functional limitations were reviewed, as well as various assistive technologies that would provide Complainant greater comfort while she was working.
On December 12, 2007, CDS notified Complainant that it would not approve the second LCD flat-screen monitor that had been requested because the medical documentation provided by her physical therapist did not provide an explanation or supporting evidence as to why such an accommodation was necessary. CDS explained that the flat-screen monitor provided as part of the voice recognition software was sufficient. Complainant did not seek a reassessment or independent review of this decision.
In addition to her request for assistive devices, Complainant requested that the Agency modify her work duties. This request was made to her Supervisor on March 5, 2007, and was overseen by her Director. The Supervisor requested that Complainant specifically identify what work modifications she was seeking. There is nothing in the record indicating that Complainant responded to her Supervisor's request at the time.
On May 22, 2007, Complainant sent management a formal request for alternate work duties to which the Director responded in writing on June 8, 2007, stating that it was unclear what work modifications Complainant was seeking. On October 7, 2007, Complainant again requested modified work duties, this time requesting additional accommodations including pace of work load and frequent breaks (a 60-second break every 20 minutes) and job-task alternatives such as changing from chart review to telephonic or record-writing work every two hours. On November 23, 2007, the Supervisor adjusted Complainant's work duties accordingly.
The AJ found that under these facts, as taken from the record, Complainant was not denied an accommodation. In so doing, the AJ correctly noted that the record demonstrated that Complainant was granted every assistive device she requested except a second (LCD) flat-screen monitor, which was not provided because the medical documentation Complainant submitted was insufficient to show that such an accommodation was necessary.8
Regarding modified work duties, the AJ found that Complainant's workload was adjusted as she requested. The AJ went on to find that Complainant's request to be limited to three hours of keyboarding per eight-hour day was unnecessary because Complainant's job itself required no more than that. Finally, the AJ found that the Agency considered Complainant's request for reassignment to administrative and paper review and determined it to be infeasible.
Upon review, we find that the AJ correctly summarized the facts surrounding Complainant's reasonable accommodation claim. We further find that the AJ correctly determined that Complainant was not denied any accommodation necessary to allow her to perform the essential functions of her position.
In so doing, we note that while protected individuals are entitled to reasonable accommodations under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Here, the record shows that, although Complainant was not provided everything she requested, the accommodations provided were consistent with Complainant's limitations, the medical documentation provided, and allowed Complainant to perform her job. Further, any delays which may have occurred during the processing of Complainant's requests for disability accommodation appear to have been caused by Complainant herself.
Disparate Treatment - EEOC Appeal Nos. 0120100007 and 0120100008
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For a complainant to prevail, she must first 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Complainant claimed discrimination when the Agency allegedly failed to provide her training opportunities, awards, and a temporary promotion while she was on detail.9 Complainant further alleged discrimination when she was denied a series of positions for which she had applied. Regarding these claims, we will assume, without so finding, that Complainant has established prima cases of sex, age, disability, and/or reprisal discrimination.
Now that we have made this assumption, the burden shifts to the Agency to articulate legitimate, nondiscriminatory reasons for the actions Complainant alleged to be discriminatory. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden reverts to Complainant to demonstrate by preponderant evidence that the Agency's reasons for its actions were pretexts for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by preponderant evidence that the Agency acted on the bases of prohibited reasons. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), 519; U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
Regarding Complainant's disparate treatment claims, the AJ found the following relevant facts. On February 27, 2006, Complainant accepted a 120-day detail to the Disability Service Improvement (DSI) Initiative within the Division of Medical Vocational Policy (DMVP) in Baltimore, Maryland. In this capacity, Complainant was tasked with preparing a training manual for new disability adjudicators and was supervised by the Director of the Office of Medical Policy (Director 2).
Complainant returned to Seattle, Washington in July 2006, during which time her managers allowed her to continue performing her detail duties until September 28, 2006, as her detail had been extended beyond its initial termination date.
Generally, in order to be considered for training assignments, employees must request such opportunities. Director 2 stated that Complainant was not afforded the opportunity for training assignments because she did not request them.10 Complainant herself stated she did not request training opportunities while she served on detail.
Complainant twice requested a temporary promotion during the DSI detail. Director 2 denied both requests because temporary promotions were not available during the detail. The AJ found and the record reflects that none of the employees serving the detail was offered or approved for temporary promotions. She also found that Director 2 did recognize Complainant for her service on the detail and approved her for a $500 cash award.
The AJ further found that Complainant applied and was not selected for four Agency positions: (1) Human Resources Specialist, announced in Vacancy Number SSA-06-062; (2) Social Insurance Specialist, announced in Vacancy Number SSA-06-079; (3) Manage Analyst, announced in Vacancy Number SSA-06-059; and (4) Social Insurance Specialist Team Leader, announced in Vacancy Number ROQA-07-053.11 She was not selected for any of these positions.
The AJ found that Complainant was not selected for the Human Resources Specialist position because she lacked the field office systems and programs experience necessary for selection, especially when compared to the qualifications of the selectee. The AJ further found that the selecting official's assertion that Complainant was not selected because her experience was limited to disability issues, while the position in question required a more broad programmatic background, to be supported by the record.
Regarding the Social Insurance Specialist position for which Complainant had applied, the AJ found that the selecting official used only the external candidate list to fill the position because he wanted employees that had recent, direct experience with the types of workloads and operating systems that would be assigned to his staff. The AJ noted that no internal candidates were considered for the position. Ultimately, no one was selected for the position.
As to the position of Management Analyst, the AJ found that the selecting official's assertions, that Complainant was not selected because (a) her interview and references were not as good as the selectee's, (b) she only applied for the position to get claims representative experience, and (c) it was clear to the selecting official that Complainant had not done significant research into the duties the job entailed, were sufficient to meet the Agency's burden.
The AJ further found that the selecting official's statement that she was looking for a "high energy" person for the job was not a pretext for age discrimination because she considered Complainant to be a person of "high energy." In so doing, the AJ noted that Agency records indicated that during the previous two-year period during which Complainant had applied for the position of Management Analyst, the selecting official had selected females, persons over forty, and disabled individuals for jobs.
Regarding the final nonselection at issue in this case, that is, the Social Insurance Specialist Team Leader position, the selecting official stated that Complainant had lower technical and interpersonal skills than those of the selectee. The Agency explained that because the Team Leader position was not a supervisory position, the eventual selectee must have had solid technical and interpersonal skills. The Agency further explained that the selectee's qualifications were better in these regards than those of Complainant.
Based on her findings of facts, the AJ found that Complainant did not present evidence showing that the Agency's stated reasons for its actions regarding training assignments, awards, a temporary promotion, and the four non-selections were pretexts for discrimination on the bases of sex, age, disability, and/or reprisal discrimination.
The Commission finds that the AJ correctly summarized the relevant facts as they relate to Complainant's disparate treatment claims. We note, as did the AJ, that as evidence of pretext Complainant offers no more than speculative and unsupported arguments to support her claims of discrimination. Such beliefs and assertions, however, are not evidence and thus insufficient to meet Complainant's burden that the actions at issue herein were pretexts for discrimination. See Wright v. Dep't of Justice, EEOC Appeal No. 0120113629 (Aug. 15, 2013).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the issuance of decisions without hearings was appropriate, that the AJ correctly summarized the relevant facts, and that her application of the law to those facts is legally sound. In so doing, we note there is nothing in either record indicating the AJ allowed the Agency to withhold relevant information or otherwise held a bias against Complainant. Accordingly, we find no reason to disturb the AJ's findings, and the Agency's final order adopting the AJ's decision is AFFIRMED.
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
April 4, 2014
Date
1 In addition to the issues discussed in this decision, Complainant also alleged discrimination when (1) the Agency violated her Weingarten rights, acknowledged in National Labor Relations Board v. J. Weingarten, Inc. 420 U.S. 251 (1975), by denying her union representation on June 6, 2007 and August 6, 2007; (2) the Office of Inspector General accessed her computer files on August 3, 2007; and (3) the Agency interfered with her union duties on August 15, 2007. The Agency dismissed these issues for failure to state a claim. On appeal, Complainant does not expressly challenge the Agency's dismissals. Therefore, they are not addressed in this decision, as the Commission exercises its discretion to review only those issues specifically raised on appeal. EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, at � IV.A (Nov. 9, 1999) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.").
2 This claim has three parts: (a) the denial of a second adjustable flat-screen monitor; (2) the denial of alternative work assignments; and (3) the delay of the disability accommodations process.
3 We assume for purposes of our analysis, without so finding, that Complainant is disabled under the Rehabilitation Act. We therefore need not address Complainant's arguments on this point.
4 As part of this request, Complainant also requested training on how to use the software.
5 As a result of the Agency's purchase of updated computer equipment, all Disability Examiners were equipped with two monitors: one (non-LCD) flat-screen monitor, and the older, cathode-ray tube monitor.
6 Training on the software was approved as well.
7 Additionally, Complainant was provided a week-long training on how to use the software. In January 2008, Complainant received two more weeks of tailored training on the voice-recognition software because she had been experiencing some "glitches" with the program.
8 The AJ also noted that Complainant's supervisor stated that a second computer monitor, regardless of type, is not required for Complainant's job and pointed out that Complainant did not seek a reassessment, reconsideration, or independent review of CDS's decision to deny this aspect of her accommodation request.
9 These allegations of discrimination are at issue in EEOC Appeal No. 0120100007.
10 Of note is that no other persons serving the same detail as Complainant were granted training opportunities.
11 The first three positions are at issue in EEOC Appeal No. 0120100007; the fourth in EEOC Appeal No. 0120100008.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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