Fedweek Legal

In Romero v. Social Sec. Admin., EEOC Appeal No. 0120102532 (Aug. 7, 2012), the EEOC held that the administrative judge (AJ)’s grant of summary judgment to the agency was inappropriate. The commission, thus, reversed the AJ’s decision finding genuine disputes of material facts.


At the time of the events giving rise to the complaint, Romero worked as a service representative for the Social Security Administration. On October 11, 2007, and April 3, 2008, Romero filed two formal EEO complaints against the agency alleging discrimination on the bases of disability, harassment, and reprisal for prior EEO activity. On June 5, 2008, the agency issued a notice of proposed removal on the ground that she was not performing satisfactorily. On June 30, 2008, Romero requested early retirement due to health reasons, and the agency approved her request on July 3, 2008.

At the conclusion of the investigation, Romero requested a hearing before an EEOC AJ, who granted her request to amend her complaint to include a claim of constructive discharge. The AJ granted the agency’s motion for summary judgment on April 15, 2010. The AJ found that Romero had failed to establish that she was an individual with a disability; the allegations of reprisal that preceded the date when management became aware of Romero’s EEO activities had no merit; and that the agency had provided documentation of non-retaliatory reasons for the remainder of the allegations. Lastly, the AJ found that there was no evidence of any conduct by the agency which would rise to the level of a hostile work environment.

On appeal to the EEOC, the commission noted that issuing a decision without a hearing is inappropriate if a case can only be resolved by weighing conflicting evidence and found that, in this case, there were “too many unresolved issues which require an assessment as to the credibility of the various management officials, co-workers, and complainant, herself.” To wit, the commission found that the evidence in the record presented a genuine dispute as to whether Romero was substantially limited in the major life activity of sleeping. The commission noted that the AJ had erred in failing to consider Romero’s evidence in this regard and construing it in the light most favorable to her. In fact, Romero’s evidence showed that she had been diagnosed with major depressive disorder and, as a result of this condition, she was unable to concentrate, sleep or eat properly.

Moreover, the commission found that there was a genuine dispute as to whether Romero was denied an accommodation since the record showed that the agency, instead of allowing her to have a flexible schedule, had placed her on restrictive leave. Lastly, the commission also found evidence of harassment since the record showed that Romero’s supervisor spoke harshly in front of her, inquired as to her whereabouts when she was in the restroom—which he did not do with other employees—as well as denied her overtime and performed a desk audit while Romero was out of the office. The commission also emphasized the fact that the record was not clear as to what, if anything, was done to address Romero’s complaints of harassment after she reported these incidents to her second-level supervisor.

For all these reasons, the commission concluded that summary judgment should not have been granted to the agency and remanded the case to the EEOC for a hearing and a decision on the merits of the claim.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.