Darlene Garcia, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionSep 18, 2000
01a03320 (E.E.O.C. Sep. 18, 2000)

01a03320

09-18-2000

Darlene Garcia, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Darlene Garcia v. Social Security Administration

01A03320

September 18, 2000

.

Darlene Garcia,

Complainant,

v.

Kenneth S. Apfel,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A03320

Agency No. 99-0067-SSA

Hearing No. 350-99-8231X

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency order

concerning her complaint of unlawful employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

For the following reasons, we REVERSE the agency's final order and REMAND

the matter.

ISSUE PRESENTED

The issue presented herein is whether the EEOC Administrative Judge (AJ)

properly granted a summary judgment ruling in favor of the agency.

BACKGROUND

Complainant, employed by the agency as a Management Support Specialist

(GS-105-12) at the time of the alleged discriminatory event, filed

a formal complaint alleging discrimination on the basis of physical

disability (schleroderma, i.e., systemic sclerosis) when the agency

failed to reasonably accommodate her disability. At the conclusion of

the investigation, complainant was provided a copy of the investigative

file and requested a hearing before an EEOC Administrative Judge (AJ).

The AJ issued a decision without a hearing finding no discrimination.

Specifically, the AJ found that the agency (1) provided complainant

a reasonable accommodation that enabled her to perform the essential

functions of her job; and (2) was not obligated to provide complainant

with the specific accommodation that she requested. The agency's final

order implemented the AJ's decision. This appeal followed.

ANALYSIS AND FINDINGS

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. This regulation is patterned after the summary judgment procedure

set forth in Rule 56 of the Federal Rules of Civil Procedure. The United

States Supreme Court has stated that summary judgment is appropriate

where the trier of fact determines that, given applicable substantive

law, no genuine issue of material fact exists. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the

evidence is such that a reasonable fact-finder could find in favor of

the non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103,

105 (1st Cir. 1988). In determining whether to grant summary judgment,

the trier of fact's function is not to weigh the evidence and render a

determination as to the truth of the matter, but only to determine whether

there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.

The courts have been clear that summary judgment is not to be used as

a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st

Cir. 1975). The Commission has noted that when a party submits an

affidavit and credibility is at issue, "there is a need for strident

cross-examination and summary judgment on such evidence is improper."

Pedersen v. Department of Justice, EEOC Request No. 05940339 (February

24, 1995).

After a careful review of the record, the evidence contained therein

reveals that complainant, in seeking a reasonable accommodation for her

disability, requested to work at home three days a week rather than in

the office because her symptoms of fatigue, swelling, dry irritated eyes,

nausea, headaches, stiff joints, pain in the arms and legs, and intestinal

irritation required nine to eleven hours of rest on a daily basis.

As part of her request, complainant indicated that she would come into

the office as needed by her supervisor. The agency denied the request,

but offered an alternative proposal. Specifically, the agency offered to

grant complainant flexible work hours and allow her to use a cot in the

nurse station to take the rest that she needed up to 40 - 45 minutes twice

daily. In concluding that there was no issue of material fact regarding

the agency's alternative proposal, the AJ found that the complainant

produced no evidence which demonstrated that she could not perform the

essential functions of her job with the alternative accommodation provided

by the agency. We disagree. Complainant's doctor, in an affidavit taken

and made a part of the record before the AJ's summary judgment ruling,

indicated that the agency's proposal would be ineffective in assisting

complainant in performing her job in a healthy and safe manner.

We note that the hearing process is intended to be an extension of the

investigative process, designed to �ensure that the parties have a fair

and reasonable opportunity to explain and supplement the record and to

examine and cross-examine witnesses.� See EEOC Management Directive

(MD) 110, as revised, November 9, 1999, Chapter 6, page 6-1; see also 64

Fed. Reg 37,644, 37,657 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �� 1614.109(c) and (d)). �Truncation of this process,

while material facts are still in dispute and the credibility of witnesses

is still ripe for challenge, improperly deprives complainant of a full

and fair investigation of her claims.� Mi S. Bang v. United States

Postal Service, EEOC Appeal No. 01961575 (March 26, 1998). See also

Peavley v. United States Postal Service, EEOC Request No. 05950628

(October 31, 1996); Chronister v. United States Postal Service, EEOC

Request No. 05940578 (April 23, 1995). In this case, the material fact

of whether the agency's proposal constituted a reasonable accommodation

is still in dispute. Therefore, judgment as a matter of law for the

agency should not have been granted in this case.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not specifically discussed in this decision, the Commission REVERSES the

agency's final action and REMANDS the matter to the agency in accordance

with this decision and the ORDER below.

ORDER

The complaint is remanded to the Hearings Unit of the appropriate EEOC

field office for scheduling of a hearing in an expeditious manner.

The agency is directed to submit a copy of the complaint file to the

EEOC Hearings Unit within fifteen (15) calendar days of the date this

decision becomes final. The agency shall provide written notification

to the Compliance Officer at the address set forth below that the

complaint file has been transmitted to the Hearings Unit. Thereafter,

the Administrative Judge shall issue a decision on the complaint in

accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final

action in accordance with 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 19848,

Washington, D.C. 20036. 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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 (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

September 18, 2000

__________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.