01A45360
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.
??
??
??
??
7
01A45360
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
8
01A45360