0120072132_0120063791
08-10-2007
Joseph Francer, Complainant, v. Cristian Samper, Acting Secretary, Smithsonian Institution, Agency.
Joseph Francer,
Complainant,
v.
Cristian Samper,
Acting Secretary,
Smithsonian Institution,
Agency.
Appeal Nos. 0120072132 &
01200637911
Hearing Nos. 570-2006-00110X;
100-2005-00294X
Agency Nos. 05-19-062405
05-03-112704; 04-07-061004; 04-21-091504
DECISION
Complainant filed timely appeals from the agency's final orders concerning
his equal employment opportunity (EEO) complaints. He alleged employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., 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 appeals are accepted pursuant
to 29 C.F.R. � 1614.405(a) and the Commission consolidates the appeals
as they both allege a claim of denial of reasonable accommodation.
29 C.F.R. � 1614.606. For the following reasons, the Commission AFFIRMS
the agency's final orders.
ISSUE PRESENTED
The issue presented by this appeal is whether the EEOC Administrative
Judge properly granted summary judgment in favor of the agency.
BACKGROUND
At the time of events giving rise to these complaints, complainant worked
as a Security Guard, GS-5, at the agency's National Museum of Natural
History, Office of Protection Services in Washington, D.C. According to
the complaints, complainant alleged that he was discriminated against
on the bases of race (Caucasian), disability (varicose veins right leg),
and age (D.O.B. March 16, 1950) when:
1. his request for a transfer to an earlier shift was denied;
2. his requests for training were denied;
3. his request for reasonable accommodation was denied.2
4. he was not selected for the position of Supervisory Security Specialist
GS-6.
At the conclusion of the investigations, complainant was provided with
copies of the reports of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested hearings in both matters. Over complainant's objections,
the AJ granted the agency's November 28, 2006 motion for a decision
without a hearing and issued a decision on February 14, 2007.3 The
agency subsequently issued final orders adopting the AJ's finding that
complainant failed to prove that he was subjected to discrimination
as alleged.
Denial of Reasonable Accommodation
In his decision, the AJ determined that complainant did not establish
that he is a qualified individual with a disability because his physician
gave the opinion that complainant is "not greatly impacted" in his daily
activities by the varicose veins in his right leg. The record indicates
that the agency initially granted complainant an assignment as a seated
elevator operator as an accommodation based on a physician's initial
assessment that he could only work while sitting eight hours per day;
however, the AJ found that complainant failed to respond to the agency's
request for additional, more detailed medical information and that
as a result he did not establish he was entitled to the protection of
the Rehabilitation Act. Therefore, the AJ concluded that the agency's
termination of the temporary assignment was justified.
Denial of Transfer and Training
With respect to complainant's claim that he was denied a transfer because
of discriminatory motives, the AJ found that there was no dispute that
complainant had an unfavorable work record and that some supervisors did
not want complainant assigned to them. The agency did offer complainant
other transfers but he declined to accept those assignments. The AJ found
that this evidence demonstrated that the agency had legitimate reasons
for not transferring complainant that were not shown to be a pretext
for discrimination. The AJ also concluded that despite complainant's
claim to the contrary, the agency provided him with training in x-ray
operations, time card keeping and control room operations. The record was
undisputed, however, that complainant failed to complete training in time
card processing and did not pass the training in x-ray interpretation.
For these reasons, the AJ concluded that there was no dispute of material
fact that the agency had satisfied complainant's requests and there was
no evidence of a discriminatory motive.
Non-selection
With respect to complainant's claim that the agency failed to select him
for the position of Supervisory Security Specialist, the AJ concluded
that complainant did not establish that he was as qualified as the
115 applicants referred for consideration. That is, complainant's
application package was awarded 15 out of a possible 50 points, leaving
him below the cut off of 18 points. The AJ found that complainant failed
to establish he had any supervisory experience and that the selectees
all presented information that they met this qualification. Based on
this evidence, the AJ found no dispute of material fact that the agency
had legitimate reasons for not referring complainant's application for
further consideration.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency did not complete its
investigation as evidenced by its failure to produce a list of new
employees by race who were hired and granted transfers to the Renwick
Museum, the Arts and Industries Museum and the Victor Building.
He contends that there was no information disclosing the names and
races of trainees who were offered the training which he had been denied.
Complainant argued that he was given a reasonable accommodation for a time
and that the agency was not justified in rescinding the accommodation
because his condition was permanent. He contends he provided all the
necessary medical documentation through his application for workers'
compensation.
The agency opposed both appeals and contends that it supplied complainant
with all information regarding the race of individuals who had been
approved for transfers. The agency incorporated by reference the
arguments set forth in its motions for summary judgment and contends
that the appeals should be rejected for failure to identify any dispute
of material fact.
ANALYSIS AND FINDINGS
In rendering this appellate decision we will 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); see also EEOC Management Directive 110,
Chapter 9, � VI.B. (November 9, 1999). This essentially means that we
should look at this case with fresh eyes and that 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. See id. at Chapter 9, � VI.A.
We must first determine whether it was appropriate for the AJ to have
issued decisions 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.
In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without 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); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003). 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 AJ 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). After a careful review of the
record, the Commission finds that the AJ appropriately issued a decision
without a hearing, as complainant failed to proffer sufficient evidence
to establish that a genuine issue of material fact exists such that a
hearing on the merits is warranted.
For purposes of our analysis, we will assume without specifically deciding
that complainant is a qualified individual with a disability as defined
by the law. According to the substantive law applicable to this case,
complainant must generally establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). Where the agency has stated a legitimate
non-discriminatory reason, we may dispense with the prima facie inquiry.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
Request for Reasonable Accommodation
Turning first to complainant's claim that he was denied a reasonable
accommodation, the record is undisputed that complainant was provided
an accommodation based on information contained in his application
for workers' compensation benefits. This documentation outlined
complainant's need for sedentary work and would have permitted him to
sit for most of the day. Thus, despite complainant's assertions that
he was refused any accommodation, the record documents that complainant
was reassigned to the position of elevator operator as an accommodation
for his leg condition. However, to the extent that complainant claims
the accommodation was unfairly terminated, there is no evidence beyond
his workers' compensation file which supports complainant's request
for more than a temporary accommodation. The Commission, however, has
long recognized that the Americans with Disabilities Act's purposes and
standards are fundamentally different from the purposes and standards of
other statutory schemes and contractual rights.4 The record corroborates,
and complainant does not dispute, that he failed to respond to the
agency's request for additional medical documentation which would
support his request beyond the temporary measures that were provided.
See Clemons v. United States Postal Service, EEOC Appeal No. 0120072320
(July 12, 2007) (complainant's failure to submit medical documentation
does not support request for reasonable accommodation).
Transfer Requests
The Commission finds that the evidence is undisputed that the agency
had legitimate reasons for denying complainant's request for a transfer.
That is, complainant does not dispute that he had an unsatisfactory work
record which prevented him from being transferred to his desired location.
In addition, the Assistant Security Manager (S) stated that complainant
did not interact well with people and this hindered his transfer requests
to certain locations. S also explained that complainant's transfer
requests were always for relocation to smaller buildings which did
not have as many opportunities since there were fewer employees. Other
managers corroborated that complainant was not a team player and was
uncooperative with receiving and carrying out instructions. S also
provided evidence that others, outside of complainant's protected class,
who were granted transfers, were placed on midnight shifts and not the
more favorable first shift which had the daytime hours that complainant
desired. Thus, there was no evidence that others were receiving more
favorable transfer requests. Complainant also does not dispute that he
received offers for transfers to other buildings such as the Hirshhorn
and the Museum of the American Indian, but that he turned them down.
Therefore, the Commission finds that complainant's claim that he was
denied the transfer of his choice does not establish that the agency's
actions were motivated by discriminatory animus.
Requests for Training
In terms of complainant's claim that the agency refused to provide him
training, the agency provided evidence that complainant received all
of his requests for training. Specifically, S stated that complainant
received training as an Acting Sergeant in 2002. The statements of
others, such as the Museum Protection Officer, indicated that complainant
received, but did not complete training for time card processing
and that he was unsuccessful in training in control room operations.
Complainant did not rebut these statements and, as such, the agency's
contention that it provided all requested training remains undisputed.
Non-selection for Supervisory Security Specialist
The Commission concludes that complainant failed to establish a
genuine issue of fact that the agency's reasons for not referring
his application for consideration were a pretext for discrimination.
As a member of the rating panel stated, complainant's application was
hard to read since it was handwritten, and there was scant information
regarding his qualifications from which he could have been given a higher
rating. Complainant did not refute this evidence or demonstrate that his
qualifications were plainly superior to those who were referred, such that
a discriminatory motive might be inferred. See Wasser v. Department of
Labor, Request No. 05940058 (November 2, 1995) citing Bauer v. Bailar,
647 F.2d 1037, (10th Cir. 1981).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we conclude that the
AJ was correct in issuing a decision without a hearing since there were
no evidentiary disputes to be resolved. Accordingly, the Commission
affirms the agency's decision finding no discrimination.
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
___8-10-07_______________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced docket number.
2 The Commission reversed the agency's dismissal of Complaint
No. 05-03-112704, alleging denial of a transfer and training and remanded
the complaint to the agency for an investigation. Francer v. Smithsonian
Institution, EEOC Appeal No. 01A53225 (July 28, 2005).
3 The same AJ was assigned to both cases. Complainant did not object to
the agency's Motion for Summary Judgment in Complaint Nos. 04-07-061004
and 04-21-091504.
4 See EEOC Enforcement Guidance on the Effect of Representations Made in
Applications for Benefits on the Determination of Whether a Person is a
Qualified Individual with a Disability" Compliance Manual No. 915.002,
February 12, 1997.
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0120072132
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
8
0120072132
0120063791