0120112588
02-08-2013
Karen L. Holbrook, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Karen L. Holbrook,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120112588
Hearing No. 541-2010-0003X
Agency No. DEN090460SSA
DECISION
Complainant filed an appeal from the Agency's March 9, 2011, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Service Representative at the Agency's Littleton, Colorado Field Office.
On May 13, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and age (49) when, on April 13, 2009, her first line supervisor harassed her because her production had fallen as a result of surgery for a medical condition related to her hand.
At the conclusion of the investigation, the Agency provided Complainant 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 Complainant's objections, the AJ assigned to the case granted the Agency's June 14, 2010 motion for a decision without a hearing, and issued a decision by summary judgment in favor of the Agency on February 10, 2011.
In his decision, the AJ found that it was undisputed that in December 2008, Complainant had carpal tunnel surgery on her right hand. Complainant returned to work one week later with a note that she was restricted in lifting, grasping, pushing, and carrying more than one pound, and that she should be on light duty with frequent breaks. Complainant did not ask for any further reasonable accommodation even though she was wearing a brace and a bandage. The AJ found that until she also had carpal tunnel surgery on her left hand in March 2009, Complainant regularly worked over time and credit time.
In January 2009, Complainant's supervisor advised her that that her production was low for the month of December. Complainant was credited with 86.91 work units. Complainant's co-workers had 10.92 and 132.79 work units between them. Thereafter, from January through April, Complainant's work units increased and far exceeded that of her co-workers. In January, Complainant was credited with 191.72 units, while the two co-workers did 6.42 and 122.50; in February, Complainant had 241.41 units and the co-workers had 5.35 and 147.37; in March, Complainant had 201.76 units and the co-workers had 48.13 and 129.35.
The AJ found that on April 13, 2009, Complainant's supervisor met with her to discuss the records of 10 specific claimants for which Complainant had recently been responsible. Complainant was informed that an investigation was being conducted. On April 14, 2009, her supervisor met with her again and informed her that there were questions about the quantity of replacement Medicare cards and address changes that Complainant had been doing over the previous three months. Complainant admitted she had done it to increase her productivity. Complainant would change 'street' to 'St.' or send cards even though they were not requested. The AJ noted that Complainant admitted that the standard protocol did not include increasing productivity by ordering Medicare cards as she had done. Complainant viewed the meetings with the supervisor as harassment.1
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no identified disputes of material fact.
Under the circumstances of this case, we find that Complainant was not subjected to discriminatory harassment as alleged. It is undisputed that the supervisor became suspicious when Complainant's productivity increased significantly in the first few months of 2009. The supervisor called some of the claimants who said they had not requested any changes or new cards. Rather, Complainant later admitted that she was making minor changes and sending in new cards to increase her numbers. The discussions that took place in April 2009 directly related to Complainant's work. Even assuming Complainant was a person with a disability, we do not find that Complainant was harassed on any basis.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's finding of no discrimination and the Agency's final order adopting the AJ's decision.
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
February 8, 2013
__________________
Date
1 We note that Complainant was subsequently suspended for her actions. Complainant filed an EEO complaint on the suspension and it was processed separately.
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0120112588
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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