0120100317
07-31-2012
Jose Toca, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jose Toca,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120100317
Hearing No. 510-2009-00016X
Agency No. ATL-08-161SSA
DECISION
On October 23, 2009, Complainant filed an appeal from the Agency's October 7, 2009, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which found that Complainant failed to demonstrate that he was discriminated against as alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to harassment and discrimination based on disability when on November 23, 2007, he was issued an official reprimand.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Representative (CR) at the Agency's Fort Lauderdale Teleservice Center facility in Fort Lauderdale, Florida. Complainant, as a Contract Representative, worked on the telephones in order to respond to customer calls. CRs were allowed fifteen minutes per day to read emails, two fifteen minute breaks, and thirty minutes for lunch. Complainant has cerebral palsy and is confined to a wheel chair. He has limited use of his right hand and types with three fingers on his left hand. Complainant has an aide who assists him with his daily work and mobility. On five occasions, Complainant's supervisor spoke to him regarding his time on the telephone. The supervisor noted that Complainant was often off of the telephone because he was on smoke breaks, having extended lunches, visiting other workers, or on the patio. Complainant was warned that he was not making a significant contribution to the goals of the unit. Complainant indicated that he would be more careful with his breaks and lunches and after these talks his work usually improved for a while.
In October 2007, Complainant got a new supervisor. She indicated that she observed Complainant on numerous occasions taking smoke breaks and just sitting outside. She spoke to him regarding his behavior and he agreed to improve. The supervisor continued to view the same behavior from Complainant so on November 23, 2007, she issued a formal reprimand to Complainant regarding his not maximizing his time on the telephones.
Complainant maintained that the reprimand was discriminatory because the Agency failed to take into account his disability when evaluating his level of work performance. Specifically, Complainant asserted that because of his disability the Agency should not have expected him to perform the principal duty of his position, answering telephone calls, at the same rate as other employees. Complainant maintained that he should have been offered at least three additional hours of time for breaks and the performance of peripheral duties. He also maintained that because he could not "talk or type as fast as others," his time on the telephone should have been "cut down." In sum, he asserted that he was not able to "work any faster" than he was already working.
Therefore, on February 20, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (Cerebral Palsy) and subjected him to harassment when:
1. On November 23, 2007, he was issued a letter of reprimand for not maximizing his time on the telephones.
At the conclusion of the investigation, the Agency provided Complainant 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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on September 25, 2009. The AJ found that assuming arguendo that Complainant established a prima facie case of discrimination on the basis of disability, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was issued a reprimand because he failed to maximize his time on the telephones. The Agency explained that instead of working on the telephones, Complainant was often seen taking smoke breaks, chatting, and sitting outside. Further, the Agency indicated that Complainant's telephone times improved when he was not engaged in these activities. Additionally, Complainant had been assigned an aide to assist him in his work and mobility. The Agency also noted that Complainant had never requested an accommodation or indicated that he was having any type of problem completing his work because of his disability.
The AJ found that Complainant's argument that he should be allowed extra time because it took him longer to type was disingenuous because he logged calls while he was actually on the telephone so he did not need additional time. The AJ in an extensive decision found that Complainant failed to demonstrate in any manner that he was subjected to discrimination or that the Agency's discussions with him regarding his work habits were severe or pervasive enough to establish a hostile work environment. The AJ found that Complainant had not proven his case. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not provide a brief on appeal. The Agency requests that the AJ's decision be affirmed. The Agency argues that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that those reasons were pretext for discrimination.
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. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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").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).
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that there are no material facts at issue. Therefore, we find that a decision without a hearing was appropriate. We also find that even if we assume arguendo that Complainant established a prima facie case of disability discrimination, we agree that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was issued a letter of reprimand because his telephone log times were at an unacceptable level. The Agency indicate that despite formal and informal counseling by both his present and past supervisors, Complainant failed to discontinue behaviors that were taking away from his telephone work time. To show pretext, Complainant indicated that the Agency was attempting to rid itself of workers with disabilities. We find, however, that no evidence other than Complainant's conclusory statements, were offered to establish this claim.1 Further, we note that Complainant's first supervisor indicated that Complainant was a good worker when he was not "wasting time" away from the telephones. We find that Complainant has not demonstrated that the Agency's articulated, nondiscriminatory reason was pretext for discrimination. Moreover, we find that Complainant has failed to demonstrate that being asked to perform his assigned job was severe or pervasive enough to establish a hostile work environment. Finally, as noted above, the record indicates that Complainant never requested an accommodation or indicated that he was having any type of problem completing his work because of his disability. Accordingly, we find that Complainant has failed to demonstrate that he was discriminated against as he alleged.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final order which found that Complainant failed to establish that he was subjected to discrimination and/or harassment as alleged.
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
___7/31/12_______________
Date
1 We note that, in addressing the AJ's issuance of a decision without a hearing, Complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.
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01-2010-0317
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100317