0120092646
04-11-2012
Betty Smith, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Betty Smith,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120092646
Hearing No. 520-2007-00510X
Agency No. 01-0228-SSA
DECISION
On May 21, 2009, Complainant filed an appeal from the Agency’s April
21, 2009, 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.1 The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Claims Representative at the Agency’s Avenue X District Office
facility in Brooklyn, New York.
The record indicates that, on January 9 and 10, 2001, Complainant asked
for administrative leave pursuant to the “Pierce Memo.” The Pierce
Memo allowed employees with certain disabilities, who face extreme
hazards when traveling to and from work during inclement weather, to
use administrative leave for up to two consecutive work days per weather
event leave. Complainant’s administrative leave request was denied by
her supervisors (“S1” and “S2”).
On February 23, 2001, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of disability (systemic
lupus and Raynard’s Syndrome)2
and reprisal for prior protected EEO activity under Section 501 of the
Rehabilitation Act of 1973 when, on January 16, 2001, Complainant’s
request for administrative leave on January 9 and 10, 2001, due to
inclement weather was denied.
At the conclusion of the investigation into her complaint, 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.
Complainant requested a hearing. The Administrative Judge assigned to
the case (“AJ1”) consolidated this matter with two other complaints
that were pending a hearing. Following the review of the case, AJ1
issued a decision without a hearing finding no discrimination had been
proven. The Agency issued a final order adopting AJ1’s decision.
Complainant appealed.
In Appeal No. 0120054332, the Commission found that AJ1 erred in issuing a
decision without a hearing solely on the issue of denial of administrative
leave. Smith v. Social Security Administration, EEOC Appeal No. 0120054332
(July 10, 2007). The decision noted that Complainant and the Agency had
already stipulated that she was an individual with a disability within
the meaning of the Rehabilitation Act and there had been no significant
change in Complainant's medical status since that time. Further, the
Commission’s decision found that the Pierce Memo required supervisors
to interview their employees with disabilities to determine their means
of travel and to enter into an agreement to establish "which inclement
weather and weather-related conditions present hazardous barriers to
the employee's travel" as well as under "what conditions the employee
would be granted excused absence." The record before the Commission
showed that there was no agreement between Complainant and S1 to define
inclement weather. As such, the decision found that management had
failed to fulfill that provision of the Pierce Memo.
The decision noted that there was a snow storm on December 30, 2000,
and again on January 5, 2001. Complainant stated that because of her
medical conditions, she experienced a flare-up of her symptoms which
caused a loss of balance in the cold weather. In order to get to work,
she was required to take public transportation and to walk one quarter of
a mile from the bus stop to the office. She called the office on January
9, 2001, after the second snowfall and informed the Technical Advisor
that she was having problems with her balance. Complainant contends
that she told the Technical Advisor that because of the icy conditions,
she might risk injury by coming to work that day. The Commission found
that, viewing the evidence in the light most favorable to Complainant,
she established that she was covered by the Pierce Memo; that she made a
request for a reasonable accommodation in the form of administrative leave
under the Pierce Memo; and that she was denied the request. Further,
the Commission found that the record indicated that another employee
was granted administrative leave on several occasions under the Pierce
Memo from 2000-2001. As such, the Commission found that S1 and S2 may
have singled Complainant out due to her prior protected activity.
Finally, the Commission found that AJ1 made credibility determinations
in finding for the Agency without a hearing. AJ1 found S1 more credible
than Complainant. Accordingly, the instant matter was remanded to the
EEOC New York District Office for a hearing.
The matter was reassigned to AJ2, who held a hearing on March 12, 2009,
and issued a decision on April 8, 2009. AJ2 found that Complainant
established that she is covered under the Rehabilitation Act based on her
systemic lupus and Raynard’s Syndrome. AJ2 also held that Complainant
establish a prima facie case of unlawful retaliation. AJ2 then turned
to the Agency to establish that it had legitimate, nondiscriminatory
reasons for its actions. AJ2 found that the Agency met this burden by
asserting that Complainant did not come to work because she was sick,
not because of a reason covered by the Pierce Memo. Therefore, AJ2
concluded that Complainant was not denied a reasonable accommodation,
and her request for administrative leave was appropriately denied under
the Pierce Memo. AJ2 also noted that Complainant was otherwise granted
liberal leave usage because of her disabilities. As such, AJ2 concluded
that Complainant failed to show that the Agency’s action constituted
disability-based discrimination or unlawful retaliation in violation
of the Rehabilitation Act. The Agency adopted AJ2’s findings in its
final order dated April 21, 2009.
The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held. An AJ’s credibility determination based
on the demeanor of a witness or on the tone of voice of a witness will
be accepted unless documents or other objective evidence so contradicts
the testimony or the testimony so lacks in credibility that a reasonable
fact finder would not credit it. See EEOC Management Directive 110,
Chapter 9, at § VI.B. (November 9, 1999).
Upon receipt of this appeal, we sent the Agency was a letter,
dated June 18, 2009, asking it to provide the EEOC with the complete
record pertaining to the complaint at hand within 30 calendar days of
notification of this appeal. See 29 C.F.R. § 1614.403. However, the
Agency did not comply with this request.
We tried several more times to obtain the hearing record from the
Agency. On November 30, 2009, we received what the Agency purported
to be the complete complaint file. However, upon closer review
of the documents, the Commission found that the documents were not
related to the instant complaint, but rather were from another EEO
matter that was currently not before the Commission. Subsequently,
via e-mails dated August 17, 2011, October 6, 2011, and December 14,
2011, the Commission contacted the Agency to again try to obtain the
complete record. In the emails, we indicated that the Agency submitted
the wrong record, asked that the Agency submit a copy of the complaint
file, the report of investigation, the hearing record and the hearing
transcripts for the instant complaint. The Agency failed to respond to
the Commission’s emails.
Based on the Agency’s failure to respond to these repeated requests
for the complaint file and hearing records, on January 24, 2012, the
Commission issued a “Notice to Show Good Cause Why Sanctions Should Not
Be Imposed” (Notice to Show Cause). The Notice to Show Cause ordered
the Agency to submit the complete file, including the hearing record,
or provide good cause why it could not, through evidence and argument,
within (20) calendar days.
The record reveals that on February 15, 2012, the Agency sent
Complainant's file to the Commission. We note that the Agency only
provided the file without specific comment or explanation. We have
carefully reviewed the file provided by the Agency. This examination has
revealed that the Agency still failed to provide a copy of the hearing
record, including the hearing transcripts for the hearing held on March
12, 2009, as we requested. The Agency also provided no explanation for
this omission.
We find that the Agency's failure to submit a complete complaint record,
including the hearing record, makes it impossible to determine whether
AJ2’s findings and credibility determinations were supported by
the record. Based on the conduct of the Agency in this case, we find
that the imposition of sanctions is warranted. The Commission repeatedly
requested the complete complaint file from the Agency. The Agency was on
notice that sanctions were possible if the Agency failed to comply. The
Agency failed to submit the record requested and, consequently, we cannot
conduct a proper review of the record.
Sanctions serve a dual purpose. On the one hand, they aim to deter
the underlying conduct of the non-complying party and prevent similar
misconduct in the future. Barbour v. U. S. Postal Serv., EEOC 07A30133
(June 16, 2005). On the other hand, they are corrective and provide
equitable remedies to the opposing party. Given these dual purposes,
sanctions must be tailored to each situation by applying the least severe
sanction necessary to respond to a party's failure to show good cause for
its actions and to equitably remedy the opposing party. Royal v. Dep't
of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009);
Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007);
Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000).
Several factors are considered in “tailoring” a sanction and
determining if a particular sanction is warranted: (1) the extent and
nature of the non-compliance, and the justification presented by the
non-complying party; (2) the prejudicial effect of the non-compliance
on the opposing party; (3) the consequences resulting from the delay in
justice; and (4) the effect on the integrity of the EEO process. Royal
v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25,
2009); Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007).
In the case at hand, the Commission finds that: (1) the Agency has
repeatedly failed to comply with EEOC’s requests for the complete
complaint file, including the hearing record, and (2) there has been an
excessively long delay with no meritorious explanation provided by the
Agency. With the failure by the Agency to provide a copy of the complete
record without explanation, the Commission is unable to properly review
whether AJ2’s findings and credibility determinations were supported
by the evidence of record. In this circumstance, we conclude that the
most appropriate sanction is default judgment for Complainant.
After deciding to issue a default judgment for a complainant, the
Commission needs to determine if there is evidence that establishes
the complainant's right to relief. One way to show a right to relief
is to establish the elements of a prima facie case. See Royal, EEOC
Request No. 0520080052; see also Matheny v. Dep't of Justice, EEOC
Request No. 05A30373 (Apr. 21, 2005). We note that the Commission
has previously found that Complainant established a prima facie case of
discrimination sufficient to create an inference of discrimination on the
bases of disability and reprisal. See Smith, EEOC Appeal No. 0120054332.
This is sufficient to support a conclusion, by default judgment, that
Complainant is entitled to relief in this case.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERE the
Agency’s final order and REMAND the matter for further processing in
accordance with the Order below.
ORDER (D0610)
The Agency is ordered to take the following remedial action:
1. Within thirty (30) days of the date this decision becomes final, the
Agency shall change Complainant’s leave record to show that Complainant
used Administrative Leave for January 9 and 10, 2001. The Agency shall
also restore any other type of leave used by Complainant for these dates
and/or reimburse her for any pay lost on these dates as a result of the
denial of administrative leave.
2. Within fifteen (15) calendar days of the date this decision becomes
final, the Agency shall give complainant a notice of her right to submit
objective evidence (pursuant to the guidance given in Carle v. Dep’t. of
the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of
any claim she may have for compensatory damages. Complainant shall be
provided with fortyfive (45) calendar days from the date she receives
the Agency’s notice to submit her evidence. The Agency shall complete
any additional investigation of the claim for compensatory damages
within forty-five (45) calendar days of the date the Agency receives
Complainant’s claim/evidence of compensatory damages. Thereafter, the
Agency shall process the claim in accordance with 29 C.F.R. § 1614.110.
3. The Agency is directed to conduct EEO training for S1 and S2, who
have been found to have violated the Rehabilitation Act, with special
focus on the obligation to provide reasonable accommodation and avoid
unlawful retaliation.
4. The Agency shall post the notice referenced in the Posting Order
section below.
5. The Agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
Agency's calculation of any backpay and other benefits due Complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Avenue X District Office facility
copies of the attached notice. Copies of the notice, after being
signed by the Agency's duly authorized representative, shall be posted
by the Agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The Agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees
to the Agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
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
April 11, 2012
__________________
Date
1 This case arose before January 1, 2009, the effective date of the
Americans with Disabilities Act Amendments Act of 2008, which made a
number of significant changes to the definition of disability under the
Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because
this matter occurred in 2002, the Commission will use the analytical
framework as it existed before the enactment of the ADA Amendments Act of
2008, to determine whether Complainant is an individual with a disability.
2 Raynard's Syndrome is described as a condition of the small arteries
which restricts blood flow to fingers and toes when exposed to cold.
See www.americanheart.org.
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0120092646
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092646