0120110526
07-12-2012
Gale Rookard, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Gale Rookard,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120110526
Hearing No. 420-2010-00114X
Agency No. ATL-09-0456
DECISION
Complainant filed an appeal from the Agency's final order dated October 25, 2010, finding no discrimination with regard to her complaint. For the following reasons, we AFFIRM the Agency's final order.
BACKGROUND
In her complaint, dated June 5, 2009, Complainant, a GS-08 Teleservice Representative in the Agency's Birmingham Teleservice Center, Birmingham, Alabama, alleged discrimination in reprisal for prior EEO activity when she received the Form 5002/Report of Contact from management on March 18, 2009, for discussion and signature, concerning a discourteous phone incident, involving a claimant, causing her to believe that she was working in a hostile environment. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 28, 2010, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency's final order implemented the AJ's decision.
ANALYSIS AND FINDINGS
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 this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. Moreover, despite Complainant's contentions on appeal, we find the record was fully developed.
In the instant case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incident. Complainant's supervisor indicated that during the relevant time period at issue, she issued Complainant the Form 5002, Report of Contact, because an identified customer complained that Complainant was discourteous and rude handling her telephone call. The supervisor stated and Complainant does not dispute that on March 18, 2009, Complainant, as a Teleservice Representative, handled the subject phone call from the customer who was asking for her "SSI" check to be mailed to her because her car was in the shop. Complainant claimed that the customer got upset when she told her to go to a field office to obtain a check and she could not help her with her request. The customer, then, asked Complainant to speak to someone else and she transferred the call to a temporary Technical Assistant (TA). The TA then transferred the call to Complainant's supervisor because the customer wanted to speak to a manager.
Complainant's supervisor stated that according to the TA, the customer told the TA that Complainant was extremely rude and made her feel degraded. When the customer told Complainant the reason for her call, stated the TA, Complainant told her that "you get a check every month, don't you?" Complainant disputes that she was rude to the customer but does not deny making the foregoing statement. The supervisor indicated the customer reiterated that Complainant was extremely rude and told her that she knew the customer was only 31 years old and had just started receiving disability compensation. The supervisor further indicated that the customer also said that Complainant interrupted her stating that "I'm still talking let me finish what I have to say." Complainant does not deny making this statement. The supervisor stated that after apologizing to the customer for Complainant's discourtesy and terminating the call, she met with Complainant and her union representative, upon Complainant's request, and issued her the Form 5002 which Complainant refused to sign. The Agency indicated that management routinely conducted service observations which consisted of an observer listening in as a call was handled and assessing the performance of the teleservice representative. These observations were recorded on a service observation report form. Since the alleged call at issue was not a routine service observation, stated the supervisor, she used a Form 5002 to record the incident. The supervisor denied issuing the Form 5002 for any discriminatory reason.
Upon review, we find no harassment since Complainant failed to establish the severity of the conduct in question or that it was related to any protected basis of discrimination. The Agency noted that Complainant's subsequent Performance Assessment and Communication System (PACS) performance plans did not refer to the alleged March 2009 write-up. We find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances. Based on the foregoing, we find that Complainant has failed to show that the Agency's action was motivated by discrimination as she alleged.
CONCLUSION
Accordingly, the Agency's final order 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
7/12/12
__________________
Date
2
0120110526
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110526