0120110625
01-24-2013
Lourdes I. Robles, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Lourdes I. Robles,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120110625
Hearing No. 480-2010-00070X
Agency No. SF-09-0181SSA1
DECISION
On October 27, 2010, Complainant filed an appeal from the Agency's September 14, 2010, final order concerning her equal employment opportunity (EEO) complaint alleging employment 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 appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which adopted the Administrative Judge's finding of no discrimination.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination on the bases of her age, national origin, and prior EEO activity when she was denied a temporary promotion; and whether based on her disability she was denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Bilingual Service Representative GS-08 at the Agency's Inglewood facility in California. Complainant applied for a 120-day temporary promotion to the position of Social Insurance Specialist (Claims Representative), in the Agency's Inglewood District Office. Complainant was not selected for the position. The selectee was a thirty year old African American with no prior EEO activity. Complainant believed that she was not selected for the position because African Americans were favored in the office. Complainant also alleged that her April 30, 2008, request for a reasonable accommodation which included an ergonomic chair, modification of her workspace, and modification of her work schedule was denied on December 30, 2008. Complainant maintained that she has a disability which she describes as Polymyositis, Interstitial Lung Disease, Lung Fibrosis, Asthma, Dysphasia Syndrome, Sjrdom Syndrome, Myofacial Pain Syndrome, Chronic Fatigue Syndrome, and Hypoglycemia. Complainant explained that her supervisory chain of command has been aware of her disability since June 1999 and have observed the effects of the diseases that are the basis of her alleged disability. Complainant stated however, that she is able to perform her job without any adjustment or accommodation.
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic), age (over 40), disability, and reprisal for prior protected EEO activity when:
1. she was denied a temporary promotion on November 5, 2008; and
2. her request for reasonable accommodation was denied on December 30, 2008.
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 April 20, 2010, motion for a decision without a hearing and issued a decision without a hearing on August 17, 2010. The AJ found that even assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency had articulated legitimate, nondiscriminatory reasons for its actions, namely, that the selectee was selected for the position instead of Complainant because the selectee had better writing and communication skills. The Agency also explained that Complainant's reasonable accommodation request was denied because she failed to provide the medical documentation to support the need for the requested equipment. The AJ found that Complainant failed to show that the Agency's reasons were pretext for discrimination. 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.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her performance ratings were the same as the selectee and not a half point lower as the AJ's decision suggested. She maintains that they both received a 3.5 rating during FY 2008. She argues that in order to receive a 3.5 rating she would have had to been able to write and communicate so therefore the Agency's articulated reason is false.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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").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. Dep't of Def., 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).
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that there are no material facts at issue and therefore a decision without a hearing was appropriate in this case. Further, we find that assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that the selectee was selected over Complainant because she had better writing and communication skills than Complainant. Complainant's argument on appeal does not establish pretext because the Agency's position was that the selectee had better writing and communication skills than her. The fact that they both received overall FY08 ratings of 3.5 does not show that Complainant's writing and communication skills were better than or equal to the selectee's. On appeal, we note that Complainant even acknowledges that the selectee received a rating of 5 for "Demonstrates Job Knowledge" while she received a rating of only 3. We find that other than Complainant's conclusory statements, she has not demonstrated that the Agency's nondiscriminatory reason was pretext for discrimination.
Further, we also find that Complainant failed to show that she was denied a reasonable accommodation. Again, the Agency articulated legitimate, nondiscriminatory reasons for its actions namely, that her request was denied because she failed to provide the medical documentation requested to support her accommodation request. Complainant failed to show that she provided the necessary documentation or that the Agency's reasons were pretext for discrimination.2 Accordingly, we find that Complainant has failed to demonstrate that she was subjected to discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order which found that Complainant failed to show that she was subjected to discrimination as alleged.
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
___1/24/13_______________
Date
1 Complainant originally requested that this case be consolidated with SF-09-0515, because the same issues and supervisor are involved. The AJ choose not to consolidate the cases.
2 The Commission has held that if an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012).
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0120110625
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110625