0120065047
01-07-2009
Ondre Harris, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Ondre Harris,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120065047
Hearing No. 370-2005-00359X
Agency No. HS-04-TSA-001033
DECISION
On September 9, 2006, complainant filed an appeal from the agency's
August 9, 2006 final order concerning her 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. 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 Transportation Security Screener at the agency's Ontario International
Airport facility in Ontario, California. On April 12, 2004, complainant
filed an EEO complaint alleging that she was discriminated against on
the basis of disability (tendonitis) when she was terminated from her
position by letter dated January 5, 2004.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing. After both parties submitted motions for a decision without a
hearing, the AJ assigned to the case issued a decision without a hearing
on June 2, 2006.
Regarding complainant's complaint, the AJ found that the relevant facts
were not in dispute and that a decision without a hearing was appropriate
under the circumstances. Specifically, complainant had been hired as a
Transportation Security Screener on September 29, 2002. Complainant's
position required her to serve a one-year probationary period. The AJ
observed that complainant last reported for work in June 2003. From June
2003 through September 2003, complainant submitted a series of notes
from her medical care professionals requesting leave and indicating she
was able to return to work on November 19, 20031. The AJ noted that
prior to notifying complainant of its decision to terminate her from
federal service in January 2004, the agency did not receive any further
information that complainant needed additional leave beyond September 29,
2003 for any reason.
On three separate occasions (August 25, 2003; October 6, 2003 and October
14, 2003) the agency requested that complainant provide adequate medical
information to support her absence from duty including identification
of her impairment and her request for accommodation. The agency also
requested that complainant notify her supervisor of her intent to return
to work. The AJ found that after complainant received the agency's
notice of termination dated January 5, 2004, complainant told the agency
that she was scheduled for surgery one day in January and provided
the agency with a receipt for prosthetic devices.
The AJ considered that the agency's policy provides that an employee
with three incidents of unauthorized absence without leave (AWOL),
may be subjected to discipline up to and including termination. The AJ
noted that complainant had been repeatedly asked by the agency to submit
adequate medical documentation to support her need for leave beyond
September 28, 2003, which complainant never provided before the time
she was terminated.
The AJ reasoned that complainant did not establish a prima facie
case of discrimination under the Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. Specifically, the
AJ found that complainant admitted that she was unable to perform the
essential functions of her position with or without an accommodation.
The AJ further found that the record did not contain sufficient medical
documentation regarding the nature of complainant's disability, its
impact on any major life activity, and its expected duration. The AJ
found that the record identifies complainant's disability as tendonitis in
both knees, but the information provided in the record did not indicate
that complainant was substantially limited in any major life activity,
including walking. The AJ found that neither complainant nor her medical
providers described complainant's disability sufficiently for the agency
to determine that complainant's tendonitis had a long term impact on her
life and daily activities to the point she was substantially limited in
a major life activity.
The AJ considered that the agency terminated a number of other employees
without disabilities during their probationary period for unauthorized
absences (AWOL) and misconduct. The AJ concluded that complainant did
not prove that discrimination occurred. The agency subsequently issued
a final order adopting the AJ's finding that complainant failed to prove
that she was subjected to discrimination as alleged.
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. 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. Department of Defense, 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).
In the instant case, we find the AJ properly issued his decision without
a hearing. Significantly, complainant does not dispute that she is not
able to perform the essential functions of the Transportation Security
Screener position for which she was hired, with or without accommodation.
Thus, complainant is not a qualified employee under the Rehabilitation
Act. Moreover, we note, as did the AJ, that the record shows the agency
terminated other similarly situated employees, who were not disabled, for
being absent without leave. Even if we assume, for argument's sake, that
complainant was a qualified employee with a disability, we do not find
that complainant has identified any employees without disabilities who
were not also terminated after three incidents of unauthorized absence.
Based on a thorough review of the record, we find no reason to disturb
the AJ's decision. We therefore AFFIRM the agency's final decision
finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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 7, 2009
__________________
Date
1 The AJ noted that complainant provided the agency with a subsequent
note from her physician that indicated that complainant would be absent
from work through September 2003. This note appeared to supersede an
earlier note indicating a return to work in November 2003.
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0120065047
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120065047