0120081831
02-04-2011
Vivian Davis, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Vivian Davis,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120081831
Hearing No. 440-2007-00024X
Agency No. CHI062080SSA
DECISION
On March 8, 2008, Complainant filed an appeal from the Agency's February
4, 2008, 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. The Commission deems the appeal timely and accepts
it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ)
properly issued a decision without a hearing finding that Complainant
failed to demonstrate that she was subject to discrimination based on
disability (physical), when the Agency failed to provide her with a
reasonable accommodation by: (1) denying her request for an alternative
work schedule (AWS), and (2) forcing her to alter her credit hours in
order to work the maximum not the minimum amount of hours in 15 minute
increments.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Data Contact Representative, on the second shift, in the Debt Management
Section (DMS) at the Agency's Chicago, Illinois Regional Office. On April
17, 2006, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability (physical) under
the Rehabilitation Act, as reflected in the above-entitled statement,
"Issues Presented."
The record reflects that Complainant has had polio since she was
approximately eight months old, and that all of her supervisors are aware
of her disability. Complainant states that the polio affected her left
side more than her right side of her body. She further states that the
cartilage on her hip is wearing down which causes her pain that she takes
medication to control. Complainant uses crutches and does not drive, and
alleges that public transportation, although available, is difficult to
maneuver with crutches. Complainant relies on a transportation service
to get back and forth to work.
Evidence of record establishes that the flexible band of attendance for
second shift employees at DMS was from 8:00 a.m. to 6:00 p.m. Prior to
September 2005, employees in Complainant's section were allowed to sign
in whenever they liked and could earn up to 2 1/2 hours of credit time.
In September of 2005, a new union agreement went into effect which also
permitted employees to earn up to 2 1/2 hours of credit time per day;
however, under this new agreement if an employee wanted to earn credit
time, they could not begin earning these hours until after their assigned
shift ended. This prohibited Complainant, or any other employee, from
signing in before their shift began and earning credit hours for that
time if they left before 6:00 p.m.
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 the Complainant's objections,
the AJ assigned to the case granted the Agency's February 22, 2007,
motion for a decision without a hearing and issued a decision without
a hearing on January 9, 2008. 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 she established a prima facie case
of disability discrimination based on the Agency denying her reasonable
accommodation request to allow her to earn credit hours by starting work
before 8:00 a.m. It is Complainant's position that the Agency's failure
to provide her with this accommodation is in direct conflict with the
union agreement. Complainant states that there is no language in the
contract that requires employees to stay until 6:00 p.m. in order to
earn credit time.
In response to Complainant's appeal the Agency requests that the
Commission affirm the AJ's finding of no discrimination. The Agency
argues that Complainant fails to present any evidence sufficient to
disturb the AJ's decision.
ANALYSIS AND FINDINGS
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. (Nov. 9, 1999) (providing that an administrative
judge's "decision to issue a decision without a hearing pursuant to
[29 C.F.R. � 1614.109(g)] will be reviewed de novo"). 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").
Summary Judgment
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).
After a review of the record, we find that there are no genuine issues
of material fact or any credibility issues which required a hearing
and therefore the AJ's issuance of a decision without a hearing was
appropriate. The record has been adequately developed, Complainant
was given notice of the Agency's motion to issue a decision without a
hearing, she was given a comprehensive statement of undisputed facts,
she was given an opportunity to respond to the motion and statement of
undisputed facts, and she had the opportunity to engage in discovery.
Under these circumstances, we find that the AJ's decision without a
hearing was appropriate.
Disability Discrimination
According to the Commission's regulations, federal agencies may not
discriminate against individuals with disabilities and are required
to make reasonable accommodation for the known physical and mental
limitations of qualified individuals with disabilities, unless an agency
can show that reasonable accommodation would cause an undue hardship.
See 29 C.F.R. �� 1630.2(o) and (p); see Appendix.
A reasonable accommodation must be effective. See U.S. Airways
v. Barnett, 535 U.S. 391, 400 (2002). "[T]he word 'accommodation'
... conveys the need for effectiveness." Id. "An ineffective
'modification' or 'adjustment' will not accommodate a disabled
individual's limitations." Id. In the context of job performance, this
means that a reasonable accommodation enables the individual to perform
the essential functions of the position. Accommodations Guidance.
Complainant alleges that the Agency failed to reasonably accommodate her
physical disability, specifically her request to earn credit hours by
starting work before 8:00 a.m. We assume for purposes of this analysis,
without so finding, that Complainant has established that she is a
qualified individual with a disability, and therefore is entitled to
reasonable accommodation. We find that, even viewing the facts in the
light most favorable to Complainant, she did not establish that the
Agency failed to reasonably accommodate her.
In this case, Complainant contends that because of her disability, she
utilizes a transportation service to get to and from work which requires
her to leave work before 6:00 p.m., thus preventing her from staying past
6:00 p.m. in order to earn credit hours as required by the agreement.
The evidence of record establishes, however, that this contention by
Complainant is without merit. As a "subscription service" customer,
2 Complainant was permitted to modify her pick up and drop off times.
See Investigative Report, Exhibit 2. All changes were subject to space
availability and were limited to 40% of the customer's monthly trips
or less. Id. Therefore, the record indicates that Complainant was able
to change her pick up time in order to be available to earn credit hours.
Based on the evidence, it appears that Complainant did not change her
duty hours or scheduled pick up time because she did not want to stay
at the office any later than 5:45.
Complainant was advised by management that in order for her to earn
credit hours she had to work until 6:00 p.m. Although reminded, the
record reflects that between January 4 and March 27, 2006, Complainant
violated the policy 23 times. See Investigative Report, Exhibit 13.
As a result of the many violations, Complainant was restricted from taking
advantage of the credit hour policy for a period of approximately three
weeks. Complainant, along with other employees requested that the Agency
revise the policy or permit the credit hours portion to go unenforced.
The Agency declined to do so. Complainant was again offered the option
to participate in the credit hours policy, and was advised that she must
work until 6:00 p.m. in order to earn hours. The record reflects that
Complainant again failed to adhere to the policy, and was permanently
prohibited from participating in the credit hour policy.
Complainant has failed to present any evidence which effectively
establishes that her disability prevents her from working her regular tour
of duty. The Agency is not required to provide an accommodation which
Complainant fails to establish is necessary to enable her to perform
the essential functions of her position, or to gain equal access to
a benefit or privilege of employment. Frische v. Dep't of Def., EEOC
Appeal No. 0120071609 (July 1, 2009) (citing McGuffin vs. USPS, EEOC
Appeal No. 01A14173 (Dec. 3, 2002)). We find that Complainant requested
to earn credit hours in a fashion outside of the normal policy for
reasons unrelated to her impairment; rather she wished to avoid working
until 6:00 p.m. Accordingly she failed to show how leaving earlier than
the time required to earn credit hours was a reasonable accommodation
that enabled her to perform the essential functions of her position as
a Data Contact Representative on the second shift. Based on a review
of the evidence, we find that Complainant was not denied a reasonable
accommodation in 2006, because she failed to establish a nexus between
her asserted disabling condition and the requested accommodation. See
Frische, Appeal No. 0120071609 (citing Smith v. U.S Postal Serv., EEOC
Appeal No. 0120055839 (Oct. 18, 2007); Brown v. U.S. Postal Serv.,
EEOC Appeal No. 01A42650 (Sept. 2, 2004).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that summary
judgment was appropriate in this case; and further find no basis to
disturb the decision of the AJ. Accordingly, the Agency's Final Order
implementing the AJ's decision 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
__2/4/11________________
Date
1 We note that Complainant's original complaint presented an additional
allegation, that she was denied advanced leave. Complainant has not
raised this as an issue on appeal; therefore, this decision does not
address the AJ's findings with respect to this allegation.
2 The record reflects that Complainant was a Subscription Service
Customer of the Chicago Transit Authority's Paratransit Operations.
A customer can qualify and opt for subscription service if she makes at
least three routine trips per week.
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0120081831
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081831