01a51327
12-02-2005
Gary Volmar, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Gary Volmar v. Social Security Administration
01A51327
December 2, 2005
.
Gary Volmar,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A51327
Agency No. SSA-03-0027
Hearing No. 160-2004-00342X
DECISION
Complainant appeals to the Commission from the agency's October 27, 2004
decision finding no discrimination. Complainant alleges discrimination
on the bases of sex (male), disability (hypertension), and reprisal
when: (1) he was harassed about his remittance workload and a two page
memorandum addressed to him regarding the remittance was given to an
onsite union representative; and (2) on May 21, 2002, his request
for reasonable accommodation was denied. On September 17, 2004, an EEOC
Administrative Judge (AJ), without a hearing, issued a decision finding no
discrimination. The AJ found that complainant failed to establish a prima
facie case of sex, disability or reprisal discrimination. The agency,
on October 27, 2004, issued a decision adopting the AJ's decision.
Complainant now appeals the agency's October 27, 2004 decision.
The record indicates that the AJ, on August 23, 2004, issued a Notice of
Intent to Issue Summary Judgment. On September 1, 2004, complainant
submitted an Opposition to the AJ's Notice of Intent to Issue Summary
Judgment. The agency did not respond. The AJ, on September 17, 2004,
issued Summary Judgment in favor of the agency finding no genuine issue
of material fact in dispute.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Complainant, during the relevant time, worked as a Service Representative,
GS-8, at the agency's Social Security Administration's (SSA) Crown
Heights District Office. Complainant's duties include speaking with SSA
claimants and beneficiaries, providing them with information related
to Social Security and taking various actions affecting their accounts,
benefits and payments on a computer terminal or paper forms.
Complainant argues that because of his hypertension, he needs to be
moved to a less stressful environment away from his first and second
line supervisors. Thus, complainant requested to be moved out of the
Crown Heights District Office. In support of complainant's request,
complainant submitted a doctor's note dated April 18, 2002. The doctor
indicates in the note that complainant is diagnosed with hypertension
and �needs to work in less stressful conditions.�
With regard to claim 1, complainant argues he was harassed about his
remittances. Further, complainant argues that a two-page memorandum
regarding the remittance issue was given to a union representative.
The record indicates that management was concerned about timely
remittances. The record indicates that remittances are a sensitive
part of the agency's operations. The record indicates that managers
questioned complainant about his remittances because he did not process
the workload in a timely manner. The record indicates that management
questioned other employees as well. Further, the record contains
an affidavit from complainant's co-worker and union representative
indicating that other employees were questioned about remittances.
Further, the affidavit reveals that union representatives were often
copied on remittance memorandum. Complainant failed to show, by a
preponderance of the evidence, that he was discriminated against on
the bases of sex, disability, or reprisal. We make this determination
without making a finding as to whether complainant is an individual with
a disability under the Rehabilitation Act.
With regard to claim 2, complainant's request to be reassigned, we find
no correlation between complainant's request and alleged disability.
Complainant's doctor's note merely diagnoses complainant with hypertension
and suggests that complainant �work in less stressful conditions.�
Complainant, on appeal, states that the �medical evidence contained in
the [doctor's note] does not in any way indicate that the risks inherent
in his condition are present only during working hours and at no other
time, or at the location where he works and in no other place.� Thus,
there is no nexus between complainant's purported disability and the
need to be reassigned from his supervisors and from the Crown Heights
District Office. We make this determination without making a finding
as to whether complainant is an individual with a disability under the
Rehabilitation Act.
The agency's decision finding no discrimination is AFFIRMED.
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 2, 2005
__________________
Date