0120102022
08-23-2012
Richard Hagan, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Richard Hagan,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102022
Hearing No. 550-2010-00052X
Agency No. DEN-08-0929 SSA
DECISION
Complainant filed an appeal from the Agency's March 11, 2010 Final Order concerning his 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 Service Representative (Contact Representative) at the Agency's Salt Lake City District Office facility in Salt Lake City, Utah. Complainant was hired by the Agency on October 10, 2007, and was serving a probationary period when he resigned in lieu of being terminated from his position during probation. On December 30, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability ((prior cardiac arrest, possible cancer, sleep apnea, clinical depression, and emotional distress) when:
Complainant was terminated under duress from his appointment in the Federal Career Intern Program (FCIP) as a Contact Representative, GS-0962-0511, effective September 26, 2008.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant 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 February 24, 2010.
In his Decision, the AJ found the material facts were not in dispute. Specifically, the AJ found the undisputed facts showed that Complainant was advised by letter dated September 26, 2008, that his termination was based upon his failure to abide by the Agency's leave policies during his probation. The letter described that Complainant had been counseled on more than one occasion by supervisor, S1, regarding his time and attendance. The letter also indicated that Complainant had been counseled regarding his time and attendance by S2, Complainant's supervisor in November 2007. The AJ noted the evidence showed that Complainant was absent from work on 19 days between November 2007 and September 26, 2008. The AJ further noted that Complainant did not provide any documentation regarding his disabilities until the week his termination was proposed by the Agency.
The AJ found that Complainant failed to present any evidence that the Agency was aware of his disabilities until after his termination was proposed.1 The AJ considered Complainant's argument that he asked questions regarding medical insurance when he was hired, and discussed a near death experience that he had playing basketball, with S1. The AJ found no dispute that these exchanges occurred, but found that neither medical reference was sufficient to put the Agency on notice that Complainant had a qualifying disability. The AJ additionally noted that Complainant acknowledged that he did not present documentation regarding his disabilities to the Agency. Moreover, the AJ found Complainant presented no evidence that he ever requested an accommodation and thus the Agency was under no obligation to provide him with one.
Accordingly, the AJ found that Complainant failed to present evidence that the Agency was aware of his disability and therefore failed to present a prima facie case of disability discrimination. The AJ further found that the Agency properly relied upon Complainant's poor attendance record as a legitimate, non-discriminatory reason for terminating Complainant's employment during his probationary period of employment. The AJ concluded that Complainant failed to present evidence that he was subjected to discrimination as alleged.
The Agency subsequently issued a Final Order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him 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. Dep't of Def., 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).
Under the Commission's regulations, federal agencies are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p); see Appendix. For purposes of analysis only, we assume, without so finding, that Complainant is an individual with a disability entitled to coverage under the Rehabilitation Act.
Upon review of the record, we find, as did the AJ, that Complainant failed to establish that the Agency was aware of Complainant's disability; nor do we find any evidence that the Agency's decision to terminate his employment during probation was motivated by Complainant's disability. We find no dispute that Complainant was absent from work on numerous occasions, that he was late to work on several occasions, and that at no time did Complainant request an accommodation for his disability. We conclude, as did the AJ, that the material facts are not in dispute and that Complainant failed to present any evidence that the Agency's actions were motivated by Complainant's disability.
CONCLUSION
We AFFIRM the Agency's Final Order finding no discrimination.
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 (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 (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
August 23, 2012
__________________
Date
1 The AJ considered that Complainant may not actually be an individual with a disability within the meaning of the Rehabilitation Act, based on his medical conditions inasmuch as Complainant concedes he is not substantially limited in any major life activity, after considering the mitigating measures Complainant takes to address his conditions.
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0120102022
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102022