Rey Lara, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionAug 21, 2009
0120091636 (E.E.O.C. Aug. 21, 2009)

0120091636

08-21-2009

Rey Lara, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Rey Lara,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120091636

Agency No. SF-07-0418-SSA

Hearing No. 480-2008-00340X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's January 29, 2009 final order concerning his 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. and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

Complainant alleged that the agency discriminated against him on the

bases of national origin (Mexican) and disability (alcoholism) when:

(1) he was not selected for a Recognition of Contribution (ROC)

performance award for the fiscal year 2006 appraisal period; and

(2) he was given a negative employment referral after applying for a

Technical Expert position.

Following the investigation into her formal complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). On January

15, 2009, the AJ issued a decision by summary judgment in favor of

the agency. On January 29, 2009, the agency fully implemented the AJ's

decision in its final order.

The AJ found that complainant did not show by a preponderance of the

evidence that he was discriminated against on the bases of national

origin and disability.1

Regarding claim (1), complainant's former supervisor (S1) stated that

the fiscal year 2006 ROC awards assessment extended from October 1,

2005 to September 30, 2006. S1 stated that on August 20, 2006, he was

promoted to a supervisory position within the agency. S1 further stated

that on November 14, 2006, as a newly promoted supervisor, he provided

the District Manager (DM), who was complainant's new supervisor, with

an analysis the performance of each employee under his supervision.

S1 stated that he did not recommend complainant for the fiscal year

2006 because he "had a poor balance of workload, quality of work, work

habits in terms of timelines for status request, and customer service.

Although he was producing a large volume of work, his quality was much

to be examined."

The record reflects that DM was complainant's supervisor for approximately

11 months of the fiscal year 2006. DM stated that before making the

final selections for the 2006 ROC awards recipients, she requested each

supervisor to provide her with feedback on the performance of employees

in their respective units and to make their own recommendations. DM

stated that S1 provided her with feedback analyzing the performance of

each employee including complainant. DM stated "when selecting the 2006

ROC award recipients, I considered that ROC awards, unlike Commendable

Act of Service Awards and On the Spot Awards, are issued to employees

who had demonstrated sustained high quality performance throughout the

fiscal year." DM stated that the ROC award performance criteria were

based not only on productive rates, but also on the quality, accuracy,

and timeliness of work and day to day observations of supervisors.

High productivity rates alone were insufficient to qualify an employee

for a ROC award in fiscal year 2006."

DM stated that she met with complainant after he found out that he was not

selected for a ROC award for the 2006 fiscal year, she told complainant

that the award was "based on overall performance. I discussed the

areas needing improvement which were accuracy of his work, inadequate

documentation in the processing of his work, consistently late and

inadequate status he provided in his work and frequent complaints from

the public concerning his lack of service (inappropriate conversation and

statements). In addition, the inappropriate remarks and conversations

he had with his peers." DM stated that complainant's national origin

and disability were not factors in her determination not to select him

for a ROC award for the 2006 fiscal year.

The record reflects that DM selected complainant for both a Commendable

Act of Service Awards and On the Spot Award for the work he performed

during the fiscal year 2006.

Regarding claim (2), DM stated that some time after August 2206,

S1 was contacted in connection with an application complainant had

submitted for a Technical Expert position at a different office.

DM stated that because S1 was recently appointed to a supervisory

position, he referred the call to her. DM stated that whenever she

receives an inquiry about an employee she provides "only the facts and

answers to the questions of the individual requesting the referral.

I am not going to give a positive answer to a question that is not true.

I'm not going to lie or give false statements. I answer the questions

truthfully." DM stated that during a December 2006 telephone call, she

was asked about complainant's experience and proficiency in many areas.

DM stated that she told the prospective employer that complainant "has

very good technical skills and knowledge of the program (Title 2 & 16)

but he does not apply that knowledge to his work. I told them he is a

huge producer, but not as accurate. I told them he has had very little

experience provide training to the staff. I recall telling them he helps

as far as one-on-one training with employees informally but he has not

had very much experience in a class setting."

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.

Complainant has offered no persuasive arguments on appeal regarding the

AJ's decision to issue a decision without a hearing, or regarding the

AJ's findings on the merits. Therefore, 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 unlawful

discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (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

August 21, 2009

__________________

Date

1 For purposes of analysis only, and without so finding, the Commission

presumes that complainant is an individual with a disability within the

meaning of the Rehabilitation Act.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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