0120132111
12-02-2015
Beth G.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Beth G.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120132111
Hearing No. 480-2012-00361X
Agency No. EOI-2011-00791
DECISION
Complainant filed an appeal from the Agency's May 17, 2013 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. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and
(2) whether Complainant established that the Agency discriminated against her on the basis of disability (physical) in connection with a June 28, 2011 leave restriction letter, her June 2011 leave without pay (LWOP) requests, and her leave usage since November 2010.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant, GS-0986-08, at the Agency's Executive Office for Immigration Review, Los Angeles Immigration Court, in California. Complainant's First Level Supervisor was the Supervisory Legal Assistant (S1). Complainant's Second Level Supervisor was the Deputy Court Administrator (S2).
According to the Agency's leave policy, leave (except in the case of emergency) is to be requested and approved in advance by a supervisor. Report of Investigation (ROI),
at Ex. E46. The Agency's leave policy includes annual leave (AL), sick leave (SL), and LWOP. Id.
For the November 2, 2010 to February 2, 2011 time period, Complainant did not submit any leave requests. ROI, at Ex. E7.
For the February 3, 2011 to June 28, 2011 time period, Complainant submitted approximately 30 AL or LWOP requests either on or after the day she took the leave. Id. In about
25 percent of the requests, Complainant listed a medical reason for the leave. Id. In about
75 percent of the requests, Complainant either did not list a reason or listed a
non-medical personal reason for the leave. Id. The Agency ultimately approved all of Complainant's requests, but initially denied the LWOP requests for May 27, June 13-14, and June 16. Id.; ROI, at Ex. E9, E13.
For the LWOP on May 27, Complainant submitted a request on June 8. ROI, at Ex. E10.
S2 initially denied the request. Id. When Complainant questioned the denial and asked for clarification of the Agency's LWOP policy, S2 stated in a June 8 email: "Leave is approved based on the needs of the court. Every time an employee calls in, we are unable to conduct and maintain the efficiency of the court. It is up to management to approve [LWOP] when it is pre-arranged and pre-approved. Because you did not know this prior to this leave request, I will approve the . . . [LWOP] this time only; however, I will not authorize [LWOP] in the future unless it is pre-arranged and pre-approved prior to the fact." (emphasis in original). ROI, at Ex. E9.
For the LWOP on June 13-14 and 16, Complainant submitted two requests on June 16.
ROI, at Ex. E10. S2 initially denied the requests, citing her June 8 email. Id. S2 charged Complainant with absence without leave (AWOL), but changed it to LWOP on June 23.
ROI, at Ex. E13.
On June 28, 2011, S1 issued Complainant a letter placing her on leave restriction.
ROI, at Ex. E5. Specifically, the letter stated that Complainant had a pattern of excessive unscheduled leave usage in 2011. Id. Among other things, the letter required Complainant to comply with the following restrictions: (a) scheduled AL, SL, or LWOP - submit a leave request to management at least five working days prior to the planned absence; (b) emergency AL, SL, or LWOP - speak to management by phone no later than 7:30 a.m. on the day of the absence and submit a leave request by 10:00 a.m. on the day of returning to work; and
(c) acceptable medical documentation - submit a doctor's certificate for each instance of SL within 15 calendar days of the leave request. Id.
For the June 29, 2011 to July 29, 2011 time period, Complainant submitted several LWOP requests and S2 approved all of them. ROI, at Ex. E7.
On July 29, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (physical) when: (1) on June 28, 2011, S1 and S2 issued her a leave restriction letter; and (2) since November 2010, S1 and S2 have repeatedly harassed her about her leave usage. ROI, at Ex. A, C1.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's July 9, 2012 motion for a decision without a hearing and issued a decision without a hearing on March 29, 2013. The AJ found that Complainant did not establish that the Agency subjected her to disparate treatment, denied her a reasonable accommodation, or subjected her to hostile work environment harassment in connection with the June 28, 2011 leave restriction letter and her leave usage since November 2010.2 The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency discriminated against her as alleged.
Complainant did not file a brief or statement in support of her appeal.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B (Aug. 5, 2015) (providing that an AJ's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See EEO MD-110, Ch. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that the Commission "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
AJ's Issuance of a Decision Without a Hearing
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that there is no genuine issue of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond to such a statement, and she was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of disability discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for issuing her the June 28, 2011 leave restriction letter. Specifically, S1 averred that Complainant's excessive unscheduled leave was impacting the court's operations and that the purpose of the leave restriction was to have Complainant begin scheduling her leave in advance. ROI, Ex. D2, at 9, 13. In addition, S2 averred that Agency policy required employees to request leave before taking leave (unless there was an emergency), yet Complainant was regularly taking leave without submitting her leave request until after she returned to work. ROI, Ex. D3, at 6.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for disability discrimination. In her affidavit, Complainant argued that the leave restriction "didn't make sense" to her because she missed work due to medical problems. ROI, Ex. D1, at 14. In addition, Complainant argued that another employee (C1) who used leave for medical reasons was placed on a leave restriction in 2010. Id. at 29.
Upon review of the record, we find that Complainant did not establish pretext. Complainant's leave requests for the February 3, 2011 to June 28, 2011 time period reflect that she took unscheduled leave (i.e., leave that was not requested and approved in advance by a supervisor) on approximately 30 occasions. ROI, at Ex. E7. Regarding her reasons for taking leave, we note that Complainant did not list a medical reason in about 75 percent of those unscheduled leave requests. Id. Regarding C1, Complainant admitted that C1 was not in her unit and was not supervised by S1 or S2. ROI, Ex. D1, at 29.
Denial of Reasonable Accommodation
We assume, without so finding, that Complainant is an individual with a disability under the Rehabilitation Act. An agency is required to make reasonable accommodation of the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. See 29 C.F.R. � 1630.9. Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Leave (as revised Oct. 17, 2002).
In her affidavit, Complainant argued that the Agency denied her a reasonable accommodation when it denied her LWOP requests. ROI, Ex. D1, at 12. Specifically, Complainant asserted that she requested LWOP in June 2011 to obtain updated medical restrictions from her
doctor. Id.
Upon review of the record, we find that the Agency did not deny Complainant a reasonable accommodation. It is unclear whether Complainant, in her affidavit, was referring to the LWOP requests she submitted in June for the May-July 2011 time period or to the LWOP requests she submitted in July for the June 2011 time period. Nevertheless, the record reflects that the Agency approved all of those requests (whether initially or eventually) and permitted Complainant to use LWOP. ROI, at Ex. E7, E9, E13.
Hostile Work Environment Harassment
To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002, at 6 (Mar. 8, 1994).
In her affidavit, Complainant argued that S1 and S2 harassed her by issuing her the leave restriction letter, denying her LWOP requests, and emailing her about her leave usage.
ROI, Ex. D1, at 16, 32, 36.
Upon review of the record, we find that Complainant did not establish a claim of harassment. Specifically, we find that Complainant did not prove, by a preponderance of the evidence, that the Agency's actions were based on her disability. Although Complainant argued that S1 and S2 harassed her with respect to the matters herein, a finding of hostile work environment is precluded by our determination that Complainant did not establish that any of the actions taken by S1 or S2 were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
We find that Complainant did not establish disparate treatment in connection with the
June 28, 2011 leave restriction letter, denial of reasonable accommodation in connection with her June 2011 LWOP requests, or hostile work environment harassment in connection with her leave usage since November 2010. Therefore, based on a thorough review of the record, we AFFIRM the Agency's final order finding no disability discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__12/02/15________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note that the AJ addressed other incidents, raised in Complainant's affidavit, related to the Agency's handling of her Office of Workers' Compensation Programs claim paperwork, response to her complaints about S1 and S2, August 2010 approval of her advance SL request, and decision to assign her certain duties. Because those incidents are outside the scope of the instant complaint, we will not address them in this decision.
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