01a45360r
12-13-2005
William F. Krug, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
William F. Krug,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A45360
Hearing No. 160-2004-00057X
Agency No. 020467SSA
DECISION
JURISDICTION
On August 3, 2004, complainant filed an appeal from the agency's June 30,
2004 final order concerning his 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 appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
Complainant began employment with the agency on May 6, 2001 as a Contact
Representative at the agency's Boston Teleservice Center in Boston,
Massachusetts. Complainant was subject to a one-year probationary period
after being hired. Complainant filed a formal EEO complaint on August 26,
2003, alleging that he was discriminated against on the bases of disability
and age (54 years old) when:
1. The agency required complainant to justify his request for
conversion to part- time employment with medical documentation;
2. In March and April 2002, his supervisor denied his request for
training on procedures and systems that he had not been
previously exposed to;
3. The agency did not permit complainant to make written rebuttals
to his supervisor's evaluations of his monitored calls; and
4. Effective May 3, 2002, the agency terminated complainant during
his probationary period.
Complainant alleges that in February 2002, he verbally asked the
Teleservice Center Manager (M1) to convert him from full-time to part-time
employment because he was experiencing discomfort and fatigue related to
his walking impairment. Complainant contends that M1 told him at that time
that he would need to submit medical documentation to be converted to part-
time. Complainant stated that his physician refused to write a letter to
the agency but instead requested a Department of Labor Family and Medical
Leave Act medical certification form. After complainant obtained the form
from the Assistant Manager (AM1), his physician completed the form and
returned it to the agency. AM1 then asked complainant to specify in
writing the days he wanted to work, which complainant did in a letter dated
April 2, 2002. The agency approved the reduced part-time schedule for
complainant effective April 7, 2002. M1 stated that he requested medical
documentation to reduce complainant's work hours to ensure that tour
changes were made equitably and fairly. AM1 stated that she requested
medical documentation from complainant because complainant based his
request on a medical need and needed to demonstrate his need for the
requested schedule change.
In claim 2, complainant contends that management denied his request for
training on the Customer Help and Information Program (CHIP). CHIP is a
software system used by the agency that allows contact representatives to
access data in a timely, consistent, and accurate manner for customers.
Complainant's supervisor responded that he never received any requests for
CHIP training from complainant and provided complainant with a training
guide so that he could familiarize himself with CHIP. The supervisor
further stated that all new hires, including complainant, were expected to
use CHIP for all calls.
Beginning in March 2002, complainant's supervisor conducted a number of
service observations of complainant's calls. On March 6, 2002, the
supervisor presented complainant with written observation notes for four
calls conducted on that date. In the notes, the supervisor questioned if
complainant was using CHIP because of his deficient responses and advised
complainant in all-capital letters "USE CHIP." On March 29, 2002 and April
15, 2002, complainant's supervisor again observed complainant's calls and
cited him for not using CHIP to obtain necessary information. M1 testified
that use of CHIP was mandatory for all contact representatives hired when
complainant was hired, although employees hired earlier had the option to
use alternative resources. M1 further stated that complainant and all
other representatives hired at the same time were given eight weeks of
training on CHIP and a mentor after the training. M1 stated that any
trainee having difficulties with CHIP could request more training through
their mentors or supervisors. Complainant maintains that he did not use
CHIP at all times because CHIP was not mandated for Contact Representatives
until October 2002 and more experienced contact representatives did not use
CHIP.
Complainant's supervisor stated that he was unaware of the policy on
rebuttals of service observations because he had just arrived at the
Teleservice Center when complainant requested to rebut the observations.
M1 also stated that complainant's supervisor was unaware that rebuttals
could be submitted to supervisor evaluations because he was new to the
Teleservice Center, but once he informed complainant's supervisor that
rebuttals were allowed, complainant was immediately allowed to submit a
rebuttal.
On April 25, 2002, M1 informed complainant of his termination effective May
3, 2002. In a letter to complainant, the agency stated that the basis for
his termination during his probationary period was that complainant failed
to successfully demonstrate his ability to perform his duties as a
teleservice representative. The agency noted that complainant's supervisor
observed complainant not using CHIP on several occasions, resulting in poor
public service to callers. The letter noted that complainant had been
directed several times to use CHIP on his calls, but refused to do so.
During the investigation, agency officials reiterated that complainant's
failure to use CHIP resulted in his termination.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On May 6, 2004, the agency filed a Brief in Support
of Summary Disposition Finding No Discrimination, to which complainant
responded on May 24, 2004. On June 17, 2004, the AJ issued a decision
without a hearing, finding no discrimination. The agency subsequently
issued a final order fully adopting the AJ's finding.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the record was not been adequately
developed for summary disposition because at the time he submitted his
brief opposing the agency's motion for summary disposition, he had not yet
received responses to his discovery requests. Complainant further argues
that the AJ improperly found no discrimination, although he provided
evidence that the agency's actions were motivated by discriminatory animus.
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
EEOC Management Directive 110, Chapter 9, � VI.B. (November 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").
ANALYSIS AND FINDINGS
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.
Department of Defense, 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).
In a claim such as the instant one which alleges disparate treatment, and
where there is an absence of direct evidence of such discrimination, the
allocation of burdens and order of presentation of proof is a three-step
process. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000) (applying the analytical framework described in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA disparate treatment
claim). First, complainant must establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination; i.e., that a prohibited
consideration was a factor in the adverse employment action. Kimble v.
Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001).
Assuming arguendo and without finding that complainant is an individual
with a disability entitled to coverage under the Rehabilitation Act, we
find that complainant failed to provide any evidence that would raise an
inference of disability or age discrimination for any of his claims.
Particularly, complainant failed to provide any evidence that any similarly
situated individuals not within his protected classes were treated more
favorably than he with respect to the alleged matters. Specifically, for
claims 1and 3, complainant notes that a co-worker stated that other
employees were not required to submit medical documentation when requesting
a reduction in duty hours and other employees were allowed to submit
rebuttals to service evaluations. However, this employee's general
assertion did not name any comparative employees or allege that there was a
discrepancy in treatment based upon age or disability. Complainant also
alleges that he raised an inference of disability discrimination for claim
4 because non-disabled probationary employees were not terminated.
However, complainant did not establish that these non-disabled probationary
employees refused to use the CHIPS system or otherwise had job performance
problems. We find that complainant has failed to provide any evidence from
which a reasonable fact-finder could conclude that complainant raised an
inference of age or disability discrimination for claims 1 - 4.
We further note that claim 1 could also be analyzed as a reasonable
accommodation claim.[1] However, we conclude that the agency reasonably
required complainant to submit medical documentation to assess his need for
a conversion to part-time. Once complainant submitted the requested
medical documentation on April 2, 2002, the agency approved complainant's
requested work schedule change on April 7, 2002. Assuming arguendo that
complainant was entitled to reasonable accommodation, we find that the
agency met its obligation to provide one.
Finally, complainant argues that the AJ improperly issued a decision
without a hearing because his response to the agency's motion was due on
May 24, 2004, while complainant's discovery requests were pending.
However, we note that complainant received responses to his discovery
requests on June 9, and 15, 2004 and incorporated the information contained
in the responses into his appeal brief. As discussed above, we find that
even with the information contained in the discovery responses, complainant
failed to provide any evidence that would defeat the agency's motion for a
decision without a hearing because he has not presented any evidence that
would establish prima facie cases of discrimination for his claims.
Therefore, we find that the AJ properly issued a decision without a hearing
finding no discrimination on the instant complaint.
CONCLUSION
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 the preponderance of the record evidence does not
establish that discrimination occurred.
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 13, 2005____________
Date
-----------------------
[1] Complainant's request for a change in schedule in order to alleviate
discomfort related to his medical condition was a request for reasonable
accommodation insofar as he was informing his employer that he needed an
adjustment at work for a reason related to a medical condition. See EEOC
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the
Americans With Disabilities Act (rev. Oct. 17, 2002) at question 1.