0120103701
01-05-2012
Lisa M. Simon, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Lisa M. Simon,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120103701
Hearing No. 550-2009-00375X
Agency No. SSA-09-166
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s August 4, 2010 final order concerning her equal
employment opportunity (EEO) complaint alleging 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. For the following reasons,
the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Tele-Service Representative at the Agency’s Tele-Service Center
in Auburn, Washington. Complainant requested and was granted annual
leave to attend an all-day church leadership meeting on November
28, 2008. After returning to work, Complainant learned that she was
eligible for religious compensation time; however, her supervisor (S1)
failed to inform her. Complainant believes that it was management’s
responsibility to inform employees of all leave available to them.
On December 1, 2008, Complainant saw a doctor who gave her a cortisone
shot for her severe tennis elbow. The next day at work, Complainant
experienced too much pain to key information into her computer. She
called her doctor who requested that she take a week off work to rest
her arm. Complainant provided S1 medical documentation and S1 allowed
her to leave work for the rest of the day. Complainant claimed that
she faxed management more documentation the next day. When Complainant
returned to work on December 8, 2008, S1 informed Complainant that her
condition did not meet the criteria for advanced sick leave and that
she would be charged 32 hours of leave without pay (LWOP).
On February 11, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of race (African-American)
when:
1. Her supervisor (S1) never explained her right to work and earn
religious compensation time as a reasonable accommodation to attend a
church meeting1 on November 28, 2008; and
2. Her request for advance sick leave, submitted December 2, 2008,
was denied on December 8, 2008. Subsequently, she was charged 32 hours
Leave Without Pay (LWOP).
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of her
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
June 15, 2010.
In the decision, the AJ assumed arguendo that Complainant had established
a prima facie case of race discrimination and determined that the Agency
had articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, as to claim (1), S1 affirmed that he was not obligated to
explain the use of religious compensation time to an employee. Further,
S1 asserted that Complainant did not indicate in any way that the annual
leave she requested, which was approved, was based on her religious
beliefs. Regarding claim (2), the AJ determined that Complainant had
insufficient annual and sick leave to cover her absence. Further,
Complainant’s medical documentation indicated that her condition was
not a serious disability or ailment. Specifically, Complainant’s
doctor stated that Complainant’s incapacity was for five days, was
not a chronic condition, and Complainant was able to perform any one
or more of the essential functions of her position. As a result, the
Agency determined that Complainant’s medical condition did not meet
the Agency’s criteria for entitlement to advanced sick leave.
As to pretext, Complainant argued that S1 was instructed by the section
manager (M1) to deny the leave. The AJ noted that Complainant was
not denied leave; rather, she was granted annual leave to attend the
church meeting. In addition, Complainant alleged that her race was
an issue because management has shown discriminatory treatment against
Blacks regarding leave issues. The AJ determined that Complainant had
submitted no evidence to support this claim. The AJ concluded that
Complainant had failed to establish that the Agency’s reasons were
pretextual and therefore, was not discriminated against as alleged.
The Agency subsequently issued a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her condition is severe and
critical and S1 failed to explain that she could have filed a workers’
compensation claim. Complainant argues that she has suffered emotional
trauma and that her supervisors should undergo training regarding their
responsibilities for leave issues. Accordingly, Complainant requests
that the Commission reverse the final order.
STANDARD OF REVIEW
Decision without a Hearing
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission determines that there are no
genuine issues of material fact or any credibility issues which required
a hearing and therefore the AJ’s issuance of a decision without a
hearing was appropriate. The Commission concludes that, even assuming
all facts in favor of Complainant, a reasonable fact finder could not
find in her favor, as explained below. Therefore, no genuine issues of
material fact exist. Under these circumstances, the Commission finds
that the AJ’s issuance of a decision without a hearing was appropriate.
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claims such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983). 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, 143 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
The Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim
(1), S1 explained that Complainant requested annual leave for November
28, 2008 to attend a church meeting. ROI, S1’s Aff., at 2. He and
Complainant had a brief discussion about her annual leave balance,
but she did not give any indication that she needed the time off due to
her religious beliefs to refrain from working. Id. S1 stated that he
considered her annual leave request and approved it. Id. S1 added that
he is not obligated to explain the use of religious compensation time;
however, had Complainant requested religious compensation time, he would
have considered it. Id. The Section Manager (M1) noted that employees
are provided ample information about leave at the time of their hiring,
including how to access that information on the Agency’s websites.
ROI, M1’s Aff., at 2.
Regarding claim (2), S1 affirmed that Complainant had insufficient
annual and sick leave to cover her absence for tennis elbow. ROI,
S1’s Aff., at 3. After reviewing all of Complainant’s submitted
medical documentation, S1 determined that Complainant’s condition did
not meet the criteria of a serious illness. Id. at 3-4. Specifically,
S1 noted that according to Complainant’s documentation, there was
no plan for additional treatment such as physical therapy. Id. at 4.
As a result, S1 denied Complainant’s request for advanced sick leave
in accordance with Agency policy.
Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for race discrimination.
Shapiro v. Soc. Sec'y Admin., EEOC Request No. 05960403 (Dec. 6, 1996).
Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. at 256. Construing the evidence in the light
most favorable to Complainant, the Commission finds that the record is
devoid of any evidence that Complainant’s race was a factor in any of
the Agency's actions. At all times, the ultimate burden remains with
Complainant to demonstrate by a preponderance of the evidence that the
Agency’s reasons were not the real reasons and that the Agency acted
on the basis of discriminatory animus. Complainant has failed to carry
this burden. Accordingly, the Commission finds that Complainant has
failed to show that she was discriminated against as alleged.
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 a preponderance of the record evidence does
not establish that discrimination occurred.
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 (Nov. 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
January 5, 2012
Date
1 Complainant did not allege religion as a basis of discrimination under
this claim.
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0120103701
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103701