01a42790
09-29-2005
Melva Obillo, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Melva Obillo v. Social Security Administration
01A42790
September 29, 2005
.
Melva Obillo,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A42790
Agency No. 02-0444-SSA
Hearing No. 370-A4-0056X
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful 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 appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms in part
and vacates and remands in part the agency's final decision.
The record reveals that, during the time at issue, complainant was
employed as a Claims Representative at a California facility of the
agency. Complainant sought EEO counseling and, subsequently, filed a
formal complaint alleging that the agency discriminated against her on
the bases of race (Asian/Pacific Islander), national origin (Hawaiian),
disability (Hypertension, Degenerative Arthritis, Heart Disease, Obesity,
and Hyper-lipidemia), and age (over 40) when it (1) subjected her to
disparate treatment and a hostile work environment when her supervisor
(S1) made insensitive remarks while she grieved her husband's death,
scheduled appointments for her on days for which she requested leave and
required her to reschedule the appointments, told her that her son could
not visit the office, reprimanded her for a verbal disagreement with
another agency employee, and called her �disgruntled,� and (2) failed to
provide reasonable accommodations of (a) a disabled-accessible parking
space in a location where she would not need to maneuver a speed bump or
(b) a personal printer.
In response to complainant's allegations, S1 stated that, as to claim
(1), she encouraged complainant to seek grief assistance and to work
on her hostile manner as she was garnering complaints, appointments
were scheduled either a month or two weeks in advance and complainant
would request leave with little advance notice, complainant's son
sat at complainant's desk and made several personal phone calls which
was an inappropriate use of an agency resource as well as disruptive
to complainant's work, complainant used inappropriate language to a
housekeeping staff member, and she informed complainant that coworkers
and claimants complained about her hostile manner. Finally, as to claim
(2), S1 stated that complainant did not make a request for reasonable
accommodation and that there were disabled-accessible spaces available
near the front entrance of the building that complainant could have used.
At the conclusion of the investigation, the agency provided complainant
a copy of the investigative file and informed of her right to request
a hearing before an EEOC Administrative Judge (AJ) or, alternatively,
to receive a final decision by the agency. Complainant elected the
former. The AJ informed complainant and the agency of her intention to
issue a decision without a hearing, to which both parties responded.
In opposition, complainant stated that she utilized a wheelchair so
she had limited access to an appropriate parking space and necessary
equipment. Further, she stated that genuine issues of material fact
exist regarding how the agency could have alleviated barriers and whether
accommodation would have posed an undue hardship to the agency. Finally,
complainant added that the agency provided an appropriate parking space
and two personal printers to a similarly situated individual outside of
her protected classes. The agency stated that complainant failed to make
her accommodation request in writing, and reiterated that appropriate
spaces were available and complainant was aware of such spaces.
The AJ issued a summary judgment decision finding no discrimination.
Specifically, regarding claim (1), the AJ concluded that complainant
failed to establish a prima facie case of discrimination or pretext and
that the actions alleged by complainant did not rise to the level of
a hostile work environment. Further, with regard to claim (2), the AJ
found that complainant did not show that the agency failed to provide her
reasonable accommodation. Subsequently, the agency issued a final action
adopting the AJ's decision without modification. Complainant filed the
instant appeal.
After a thorough review of the record, for claim (1), we find that
complainant failed to show that the legitimate, nondiscriminatory reasons
articulated by the agency for its actions are pretextual or that the
actions alleged rise to the level of a hostile work environment.<1>
We affirm the agency's finding on this matter.
For claim (2), we find that there is a genuine issue of material fact
in dispute and vacate the agency's final action.<2> 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.
After a careful review of the record, we find that the AJ erred when she
concluded that there are no genuine issues of material fact as to claim
(2) and issued a summary judgment decision on the matter. Complainant
states that she requested accommodation for parking and office equipment
and the agency states that she did not and we find that is a genuine
issue of material fact. Further, we question the open availability
of appropriate parking spaces and the agency's need or lack thereof to
accommodate complainant with a parking space. The Commission VACATES
the agency's final action as to claim (2) and REMANDS the matter to the
agency in accordance with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
field office a request for a hearing, regarding claim (2), within fifteen
(15) calendar days of the date this decision becomes final. 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 (K0501)
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 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 (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 (R0900)
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 29, 2005
__________________
Date
1We assume for the purpose of analysis
that complainant is an individual with a disability. See 29 C.F.R. �
1630.2(g)(1).
2We note that the agency did not address complainant's contention that
she requested a personal printer.