0120091636
08-21-2009
Rey Lara, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Rey Lara,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120091636
Agency No. SF-07-0418-SSA
Hearing No. 480-2008-00340X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 29, 2009 final order concerning his 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against him on the
bases of national origin (Mexican) and disability (alcoholism) when:
(1) he was not selected for a Recognition of Contribution (ROC)
performance award for the fiscal year 2006 appraisal period; and
(2) he was given a negative employment referral after applying for a
Technical Expert position.
Following the investigation into her formal complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On January
15, 2009, the AJ issued a decision by summary judgment in favor of
the agency. On January 29, 2009, the agency fully implemented the AJ's
decision in its final order.
The AJ found that complainant did not show by a preponderance of the
evidence that he was discriminated against on the bases of national
origin and disability.1
Regarding claim (1), complainant's former supervisor (S1) stated that
the fiscal year 2006 ROC awards assessment extended from October 1,
2005 to September 30, 2006. S1 stated that on August 20, 2006, he was
promoted to a supervisory position within the agency. S1 further stated
that on November 14, 2006, as a newly promoted supervisor, he provided
the District Manager (DM), who was complainant's new supervisor, with
an analysis the performance of each employee under his supervision.
S1 stated that he did not recommend complainant for the fiscal year
2006 because he "had a poor balance of workload, quality of work, work
habits in terms of timelines for status request, and customer service.
Although he was producing a large volume of work, his quality was much
to be examined."
The record reflects that DM was complainant's supervisor for approximately
11 months of the fiscal year 2006. DM stated that before making the
final selections for the 2006 ROC awards recipients, she requested each
supervisor to provide her with feedback on the performance of employees
in their respective units and to make their own recommendations. DM
stated that S1 provided her with feedback analyzing the performance of
each employee including complainant. DM stated "when selecting the 2006
ROC award recipients, I considered that ROC awards, unlike Commendable
Act of Service Awards and On the Spot Awards, are issued to employees
who had demonstrated sustained high quality performance throughout the
fiscal year." DM stated that the ROC award performance criteria were
based not only on productive rates, but also on the quality, accuracy,
and timeliness of work and day to day observations of supervisors.
High productivity rates alone were insufficient to qualify an employee
for a ROC award in fiscal year 2006."
DM stated that she met with complainant after he found out that he was not
selected for a ROC award for the 2006 fiscal year, she told complainant
that the award was "based on overall performance. I discussed the
areas needing improvement which were accuracy of his work, inadequate
documentation in the processing of his work, consistently late and
inadequate status he provided in his work and frequent complaints from
the public concerning his lack of service (inappropriate conversation and
statements). In addition, the inappropriate remarks and conversations
he had with his peers." DM stated that complainant's national origin
and disability were not factors in her determination not to select him
for a ROC award for the 2006 fiscal year.
The record reflects that DM selected complainant for both a Commendable
Act of Service Awards and On the Spot Award for the work he performed
during the fiscal year 2006.
Regarding claim (2), DM stated that some time after August 2206,
S1 was contacted in connection with an application complainant had
submitted for a Technical Expert position at a different office.
DM stated that because S1 was recently appointed to a supervisory
position, he referred the call to her. DM stated that whenever she
receives an inquiry about an employee she provides "only the facts and
answers to the questions of the individual requesting the referral.
I am not going to give a positive answer to a question that is not true.
I'm not going to lie or give false statements. I answer the questions
truthfully." DM stated that during a December 2006 telephone call, she
was asked about complainant's experience and proficiency in many areas.
DM stated that she told the prospective employer that complainant "has
very good technical skills and knowledge of the program (Title 2 & 16)
but he does not apply that knowledge to his work. I told them he is a
huge producer, but not as accurate. I told them he has had very little
experience provide training to the staff. I recall telling them he helps
as far as one-on-one training with employees informally but he has not
had very much experience in a class setting."
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 has offered no persuasive arguments on appeal regarding the
AJ's decision to issue a decision without a hearing, or regarding the
AJ's findings on the merits. Therefore, after a review of the record
in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final order, because the Administrative
Judge's issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence does not establish that unlawful
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
August 21, 2009
__________________
Date
1 For purposes of analysis only, and without so finding, the Commission
presumes that complainant is an individual with a disability within the
meaning of the Rehabilitation Act.
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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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