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Friends v. Astrue

July 5, 2007

ALICE ANN FRIENDS, PLAINTIFF,
v.
MICHAEL J. ASTRUE,*FN1 COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Alice Ann Friends has brought suit alleging that the Social Security Administration ("SSA") violated the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., by failing to make a reasonable accommodation to her permanent bilateral deafness (Count I) and by unlawfully discharging her (Count II). The parties have filed cross-motions for summary judgment on Count I, defendant has moved for summary judgment on Count II, and plaintiff has moved for discovery pursuant to Federal Rule of Civil Procedure 56(f). For the reasons set forth herein, the parties' summary judgment motions will be denied and plaintiff's Rule 56(f) motion will be granted.

BACKGROUND

Plaintiff is deaf in both ears and legally blind in her left eye. (Def.'s Statement of Material Facts as to Which There Is No Genuine Issue ["Def.'s Facts"] ¶ 2.) She speaks English

but lacks complete control over her intonation. (Pl.'s Statement of Material Facts in Supp. of Her Mot. for Summ. J. ["Pl.'s Facts"] ¶ 4.) In September 2002, plaintiff was hired by the SSA as a GS-9 bilingual claims representative, a position that entailed conducting interviews with claimants to determine their eligibility for benefits. (Def.'s Facts ¶¶ 1, 4.) The SSA was aware of plaintiff's deafness when she was hired. (Pl.'s Facts ¶ 9.)

Between October 2002 and March 2003, plaintiff received training by Interactive Video Technology ("IVT"), which allows students across the country to watch one instructor by television. (Def.'s Facts ¶ 6.) Plaintiff's class was closed-captioned, although she alleges that the closed-captioning was often inaccurate or missing. (Pl.'s Statement of Genuine Issues[] in Resp. to Def.'s Cross-Mot. for Summ. J. ["Pl.'s Opp'n Facts"] ¶ 6.) After plaintiff complained that she could not sufficiently understand the IVT sessions, an American Sign Language ("ASL") interpreter was provided to assist her. (Pl.'s Facts ¶ 11.) In addition, throughout plaintiff's IVT training, she was mentored by Michelle Ward, an experienced employee who is deaf and able to communicate in ASL. (Def.'s Facts ¶ 7.)

After completing the IVT training, plaintiff began six months of on-the-job training. (Pl.'s Facts ¶ 12.) When Ward went on maternity leave in March 2003, Monte Walker, a management support specialist, replaced her as plaintiff's mentor. (Def.'s Facts ¶ 9.) Walker found that plaintiff was difficult to work with and repeatedly asked the same questions. (Id. ¶ 11.) Gayle Syphax volunteered to mentor plaintiff in September 2003, but after a short period of time she requested to leave the role, citing the same problems as Walker. (Id. ¶ 12.) Walker then returned as plaintiff's mentor. (Id. ¶ 13.)

Notwithstanding the apparent frustration of plaintiff's mentors, in October 2003 the SSA certified that she had performed satisfactorily at the GS-9 level during the year ending September 2003. (Pl.'s Facts ¶ 14.) She was promoted to GS-11, the full-performance level of the position. (Id. ¶ 15.)

On March 11, 2004, plaintiff told a supervisor that she did not want Walker to continue as her mentor. (Def.'s Facts ¶ 13.) Robin Wells, the district manager of the Postal Plaza Field Office, then replaced Walker as plaintiff's mentor. (Id.) Wells observed that plaintiff had trouble asking appropriate questions in ways that claimants could understand, did not appear to understand claimants' responses, and had trouble with the technical aspects of her job. (Id. ¶ 14.)

Although plaintiff was authorized to use an ASL interpreter for up to thirty-two hours per week to communicate with her supervisor and mentor (Pl.'s Facts ¶ 22), she was not authorized to use the interpreter during interviews with claimants. Plaintiff submitted a written request for a full-time interpreter on March 11, 2004.*fn2 (Def.'s Facts ¶ 22.) On April 29, 2004, Doug France, an equal opportunity specialist, informed plaintiff that her request had been denied, explaining that interpreters were provided only for "meetings, training, mentoring, progress reviews, conference attendance, and other work-related events." (Def.'s Opp'n Ex. 14 at 1.) When plaintiff's union representative requested a reassessment, France affirmed the initial decision and reiterated that interpreters could not "be used to conduct interviews and/or other business with the public." (Def.'s Facts ¶ 24 (quoting France email of June 4, 2004).)

Plaintiff first sought EEO counseling on June 9, 2004.*fn3 (Pl.'s Mem. in Opp'n to Def.'s Cross-Mot for Summ. J. & Pl.'s Reply to Def.'s Opp'n to Mot. for Summ. J. ["Pl.'s Reply"] Ex. 3 at 2.) On September 10, 2004, Lorna Walters, plaintiff's second-level supervisor, informed plaintiff that she was being terminated as of September 17, 2004. (Def.'s Facts ¶ 20.) On September 16, 2004, plaintiff resigned. (Id. ¶ 21.) She filed a formal EEO complaint the following day. (Id. ¶ 32.) The EEO process automatically terminated when plaintiff filed the complaint in this case on October 17, 2006.

ANALYSIS

I. Standard of Review

Under Federal Rule of Civil Procedure 56(c), a motion for summary judgment shall not be granted unless "the pleadings, depositions, answers to interrogatories, . . . admissions on file, [and] . . . affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In considering a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ." Id. The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials ...


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