0120123366
04-18-2014
Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Highway Administration), Agency.
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Highway Administration),
Agency.
Appeal No. 0120123366
Hearing No. 570-2011-00556X
Agency No. 2011-23596-FHWA-02
DECISION
On August 29, 2012, Complainant filed an appeal from the Agency's August 1, 2012, final decision 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Specialist at the Agency's Office of Transportation Operations facility in Washington, D.C.
The record indicated that Complainant began working for the Agency in January 2010.
On November 18, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (Chronic Depression, Back and Neck Impairments, Diabetes, Panic Anxiety and Stomach Erosions) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On September 22, 2010, Complainant was notified that she was not able to telework or to work an alternative work schedule.
2. On October 29, 2010, she received a leave restriction document.
3. She was subjected to a hostile work environment. In support of her claim, she alleged the following events:
a. On September 22, 2010, she was notified of specific call-in procedures, the requirement for her to send a notification to her supervisor each day regarding her start and departure times and notified of the requirement that she request leave without pay (LWOP) in advance.
b. On September 28, 2010, the Team Leader requested that Complainant provide medical documentation.
c. On September 28, 2010, she received an attendance warning.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing through her counsel (Attorney 1).
The record indicated that the AJ informed the parties that they had 20 days to initiate discovery based on the Acknowledgment and Order dated January 9, 2012. The parties were provided with 30 days upon receipt to respond to the discovery requests. The parties exchanged discovery requests on January 25 and 30, 2012. The parties were engaged in settlement negotiations. On February 28, 2012, the Agency filed a joint request to extend discovery by 30 days. The motion was granted by the AJ who directed the parties to conclude discovery by April 20, 2012 and warned that no further extensions would be granted. It appeared that the parties might be close to settling the matter in April 2012. However, no agreement was reached as of April 18, 2012. The Agency indicated that it reached out to Attorney 1 regarding the discovery as no agreement had been reached. The Agency noted that Attorney 1 responded that he would file a stay of the proceedings on April 20, 2012. The Agency tried to reach Attorney 1 at his office but was told that he was not in. On April 24, 2012, the Agency tried again to reach Attorney 1 to obtain discovery responses.
On May 3, 2012, the Agency filed a motion to compel discovery. On May 7, 2012, the AJ issued an order to Complainant to show cause why sanctions should not be imposed for failing to comply with the AJ's March 7, 2012 order directing conclusion of discovery by April 20, 2012. Complainant failed to respond to the AJ's show cause order. On May 24, 2012, the AJ issued her order denying the hearing request citing Complainant's failure to respond to the show cause order as justification for her action. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency's final decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The decision noted that Complainant was not given telework as an accommodation for management averred that her position was not suited for telework. Manager averred that her functions needed to be performed in the office. In addition, they noted that Complainant was new and was still learning the full range of her responsibilities. They also stated that Complainant had previously abused her telework privileges. Accordingly, the Agency determined that telework was not a reasonable accommodation in that it would not have allowed Complainant to perform the essential functions of her position.
Turning to Complainant's claim of disparate treatment, the decision found that management articulated legitimate, nondiscriminatory reasons for its actions. As for telework, the Agency found that Complainant's performance and development in the position resulted in the removal of task-based teleworking and the alternative schedule. The Supervisor indicated that he issued the leave restriction letter on October 29, 2010, because of Complainant's ongoing absences and time and attendance issues. He stated that he provided Complainant with the letter to help her improve her attendance. Finally, as to the AWOL charges, the Supervisor noted that Complainant had unauthorized absences from work. As such, she was charged as AWOL. The Agency found that Complainant did not show that the Agency's reasons constituted pretext for discrimination.
Finally, the Agency considered Complainant's claim of harassment. The Agency found that Complainant listed events that were work-related and in response to Complainant's habit of calling in at the last minute. Further, the Agency indicated that management requested Complainant's medical information based on her use of leave due to an illness. Finally, management asked that Complainant email when she arrived and left based on her failure to comply with the working a full day or requesting the appropriate amount of leave. Therefore, the Agency concluded that Complainant failed to show that the alleged actions were severe or pervasive enough to establish her claim of harassment or that the events occurred because of a disability or her prior EEO activity. Therefore, the Agency concluded that Complainant failed to show that she was subjected to discrimination as alleged.
This appeal followed. On appeal, Complainant's new attorney (Attorney 2) alleged that the Agency's actions constituted unlawful denial of reasonable accommodation, disparate treatment and harassment. In addition, Attorney 2 suggested that, in the alternative, that the matter be remanded to the AJ for a hearing. Attorney 2 argued that the sanction was too severe. Attorney 2 noted that on April 20, 2012, Attorney 1 stated that he was going to file a Motion to Stay the proceedings to allow the parties to finalize the settlement agreement. Following the AJ's Show Cause order, Attorney 1 informed his firm that he would have to take a leave of absence. The firm granted Attorney 1's leave of absence on May 21, 2012. Attorney 2 was assigned the case on May 23, 2012, and only then learned of the Show Cause order by the AJ. Attorney 2 argued that the dismissal was too severe for Complainant's failure to respond was not a result of her negligence nor did it prejudice the Agency. Further, Attorney 1 had indicated that the parties were close to settlement and that he was going to file a Motion to Stay. Attorney 1 was experiencing personal and medical issues and had not engaged in "sanctionable conduct." Accordingly, Attorney 2 requests that the Commission remand the matter back to the AJ.
ANALYSIS AND FINDINGS
Dismissal of Hearing
An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3). Such sanctions may include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party, or other actions, as appropriate. Id. However, such sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing her discretion to impose a harsher sanction. Hale v. Dep't of Justice (U.S. Marshals Service), EEOC Appeal No. 01A03341 (Dec. 8, 2000).
We note that Attorney 1 was the attorney of record at the time of the hearing. He had indicated to the Agency that he was going to file a Motion to Stay the proceedings because the parties were close to settlement. There is no evidence that any such Motion was filed. Further, there is no indication that Attorney 1 or Complainant failed to receive the Show Cause order. At no point did Attorney 1 or Complainant respond to the order. Further, when Attorney 1 experienced personal and medical issues, he failed to put the AJ or the Agency on notice that he would not have been available. In addition, the firm failed to make the AJ or the Agency aware of the situation when the Show Cause order had been issued. Based on the record and the failure on the part of Attorney 1 or his firm to make the AJ and the Agency aware of the situation, we find that the AJ's dismissal of the hearing was appropriate.
Final Agency Decision
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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 EEOC "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").
Denial of Reasonable Accommodation
Upon review of the record, we find that in claim (1), Complainant alleged that she was denied a reasonable accommodation Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Complainant also must show that she is a "qualified" individual with a disability within the meaning of 29 C.F.R. � 1630.2(m). The term "qualified individual with a disability," with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. � 1630.2(m).
The Agency indicated that Complainant began working for the Agency in January 2010. The Team Leader averred that the job required Complainant to provide coordination, management, support, feedback and input on the full range of Operations activities. She also provides special assistance to the Associate Administrator and provides a host of administrative management functions. As a member of the team, Complainant is required to be in the office to assist and facilitate meetings, provide on-site administrative support to the Associate Administrator, Office Directors and to all the programs within Operations. Therefore, the Team Leader indicated that Complainant's position is not appropriate for telework. The Team Leader also averred that telework was available on a task-based basis only. Complainant was permitted to telework in February 2010, and he noted that Complainant teleworked more than what was expected or appropriate for her position. However, he found that Complainant's leave usage continued and she was on telework often, leaving her out of the workplace routinely. The Team Leader noted that this resulted in Complainant being away from her new work environment and limited her exposure to the full range of the responsibilities associated with her position. Therefore, the telework was detrimental to Complainant's full performance in core areas of her job. Finally, the Team Leader averred that he found that when Complainant was on telework, she was not reliably responsive to telephone or e-mail contacts. He also noted that Complainant would request telework on days when her family needed medical or personal attention, contrary to the telework policy. Based on the evidence provided by the Team Leader, we find that telework would not have been an effective accommodation for it would not have allowed Complainant to perform the essential functions of her position.
Medical Inquiry
In claim (3)(b), Complainant asserted that she was subjected to discrimination when the Team Leader requested medical documentation. The Rehabilitation Act was amended in 1992 to apply the standards of the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Enforcement Guidance - Disability Related Inquiries), No. 915.002 (July 26, 2000); Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (March 25, 1997); and EEOC Enforcement Guidance on Preemployment Disability-Related Questions and Medical Examinations (Enforcement Guidance - Preemployment) (October 10, 1995). Because the restrictions on employers with regard to disability-related inquiries and medical examinations apply to all employees, and not just to those with disabilities, it is not necessary to inquire whether the employee is a person with a disability. Enforcement Guidance - Disability Related Inquiries, p. 3.
The Rehabilitation Act places certain limitations on an employer's ability to make disability-related inquires or require medical examinations of employees only if it is job-related and consistent with business necessity. 29 C.F.R. �� 1630.13(b), .14(c). Generally, a disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition."1 Enforcement Guidance - Disability-Related Inquiries, at 15-16. It is the burden of the employer to show that its disability-related inquiries and requests for examination are job-related and consistent with business necessity. Id. at 15-23.
The Team Leader indicated that he requested the medical documentation because of Complainant's ongoing history of medical related absences as well as her non-medically related absences. He stated that he wanted to be sure that the Agency was in a position to make reasonable accommodations pursuant to Complainant's medical and physical concerns. He also noted that Complainant had exhausted all of her leave and advance leave due to several issues including Complainant's medical needs as well as the needs of her husband. The Team Leader also noted that Complainant failed to provide medical documentation in February and March 2010, despite his requests related to her requests for sick leave due to medical emergencies. As such, the Team Leader requested medical documentation. We find that the Team Leader has shown that the request for medical documentation was job-related and consistent with business necessity. Therefore, we conclude that the Agency's action did not violate the Rehabilitation Act.
Disparate Treatment
Complainant also alleged that she was subjected to disparate treatment in claim (2) A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Again, the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). The
Hostile Work Environment
It is well-settled that harassment based on an individual's disability and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) s/he is a qualified individual with a disability covered under the Rehabilitation Act and/or engaged in prior EEO activity; (2) s/he was subjected to unwelcome conduct; (3) the harassment complained of was based on his/her disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). 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 (March 8, 1994).
For the purposes of analysis, we assume petitioner is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision 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
April 18, 2014
__________________
Date
1 "Direct threat" means a significant risk of substantial harm that cannot be eliminated orreduced by reasonable accommodation. 29 C.F.R. 1630.2(r).
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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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