0120120153
09-09-2014
Complainant, v. Joshua Gotbaum, Director, Pension Benefit Guaranty Corporation, Agency.
Complainant,
v.
Joshua Gotbaum,
Director,
Pension Benefit Guaranty Corporation,
Agency.
Appeal No. 0120120153
Hearing No. 570-2008-00672X
Agency No. PBGC 07-13, 08-15, 08-20
DECISION
Complainant timely filed an appeal from the Agency's September 9, 2011, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and 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 Administrative Judge (AJ) properly granted the Agency's motion for summary judgment on Complainant's claim that the Agency discriminated against her on the bases of race, color, sex, disability, and reprisal for prior protected EEO activity and (2) whether the AJ properly found that Complainant had not proven that she had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Auditor, GS-318-12, in the Agency's Trusteeship Processing Division 1 (TPD-1), Benefits Administration and Payment Department (BAPD), in Washington, D.C. On August 28, 2007, March 12, 2008, and August 1, 2008, Complainant filed EEO complaints alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), color (white), disability (hearing disability), and reprisal for prior protected EEO activity. The AJ defined Complainant's allegations as follows1:
(a) Human Resource Division (HRD) employees treated her in a hostile manner when handling her reasonable accommodation requests;
(b) her supervisor made derogatory remarks about her work performance, sent her hostile e-mails, and treated her unprofessionally;
(c) her reasonable accommodation requests for note takers, advance copies of notes, and agendas for meetings were denied;
(d) the Agency failed to provide her with interpreters who were effective;
(e) on October 17, 2008, she received a lower performance rating of "Fully Effective" for FY 2007;
(f) from January to March 2008, her supervisor was negative in her communications with her and was not sensitive to her needs, and she was given last-minute auditor training;
(g) on April 9, 2008, the Agency failed to consider her struggle to obtain accommodations when assessing a penalty for an altercation;
(h) on October 28, 2008, the interpreter for the National Disability Awareness Month program was late and the Agency did not provide her with a back-up interpreter; and
(i) the Agency failed to provide her with notes in advance of a meeting on November 12, 2008, and failed to provide her with a visual presentation at this meeting. Her request that all employees be given a reminder in their performance plans about her accommodations was denied.
Complainant began working as an Auditor for the Agency on December 12, 1999. According to the position description, Complainant's job involves performing field audits on mid-to-large-sized pension plans.
Reasonable Accommodation (Claims c, d, f, h, and i)
Complainant alleges that the Agency failed to provide reasonable accommodations for her hearing disability. In general, her allegations concern her use of sign-language interpreters, her requests to receive handouts before meetings and notes describing the meetings' discussions after meetings, and her attendance at training sessions. Complainant also alleges that employees of the Agency's Human Resources Division (HRD) treated her in a hostile manner when handling her requests.
Different Agency offices had responsibility for reasonable-accommodation matters during the period at issue in Complainant's complaints. At the time of Complainant's first formal complaint, the Director of Human Resources acted as the Reasonable Accommodation Coordinator (RAC-1). The Human Resources Department's Acting Manager of Employee Relations became the Reasonable Accommodation Coordinator (RAC-2) in January 2008. RAC-2 issued several memoranda responding to Complainant's requests for reasonable accommodation, including memoranda dated January 14, January 16, January 23, March 18, March 21, June 18, June 23, July 8, September 29, and October 7, 2008.
According to the EEO Manager, the Agency's Human Resources Department has primary responsibility for handling reasonable accommodation requests other than requests for interpreter services. Until the end of Fiscal Year 2007, the EEO Office was responsible for the reasonable-accommodation budget. The EEO Office handled some special requests for interpreters, but it did not schedule day-to-day interpreter services. Instead, Complainant and another employee with a hearing disability usually worked directly with vendors to schedule their interpreter services. The Agency's Facilities and Services Department (FASD) assumed responsibility for the reasonable-accommodation budget on October 1, 2007. On October 1, 2008, responsibility for the Interpreter Services Program (ISP) was transferred from FASD to the Human Resources Department.
Prior to January 2008, the Agency did not have a written directive concerning reasonable accommodation. On January 16, 2008, the Agency issued Directive PM 30-7, which addressed reasonable-accommodation procedures. According to the Directive, the Director of Human Resources serves as the Reasonable Accommodation Coordinator (RAC), the EEO Offices serves as a resource for reasonable-accommodation matters and forwards reasonable-accommodation requests to the RAC, and the FASD Director processes reasonable-accommodation requests approved by the RAC. The Directive calls on supervisors and managers to forward reasonable-accommodation requests to the RAC.
Sign Language Interpreters and Federal Relay System
Complainant generally used lip-reading, sign language interpreters, or the Federal Relay System (FRS) for meetings. The Agency contracted with outside companies for sign language interpreting services. Because the Agency required visitors to be escorted in and out of the building, Complainant had to meet the interpreters when they arrived, sign them into the building, and escort them out of the building when they left.
In April 2007 e-mails to an FASD representative (FASD-1), two of Complainant's Team Leaders, Complainant's second-level supervisor (S2), and the Division Manager for Labor Management and Employee Relations and Performance Management (LMER Manager), Complainant asked that interpreters receive contractor badges. She noted that she had been unable to escort an interpreter out of the building on one day because her meeting ran late and that she had missed the end of a staff meeting because she had to leave the meeting to escort an interpreter out of the building. She stated that she did not want others to escort interpreters because she was independent. Complainant suggested that, rather than attend meetings in person, she could use FRS from her office. In addition, Complainant stated that she had two meetings on April 23 and would need to use FRS rather than an interpreter because she could not leave a meeting to escort an interpreter.
In an April 20, 2007, e-mail to Complainant, S2 suggested that Complainant ask the team's program assistant or another team member to escort the interpreters when Complainant needed assistance. With respect to Complainant's request to use FRS for team meetings, S2 stated that Complainant was required to attend meetings with an interpreter unless directed otherwise by a manager. S2 also stated that Complainant was expected to attempt to get an interpreter for meetings scheduled on short notice (less than one-week's notice) and should use FRS if unable to obtain an interpreter or if the interpreter did not appear at the meeting.
In a November 20, 2007, e-mail to S2 and the Associate Division Manager (S1), Complainant stated that she used interpreters for monthly meetings, where the pace is normal, but would use FRS for weekly staff meetings, where the pace is faster than normal. S1 replied on December 4, 2007, that Complainant should use interpreters for staff meetings and should use FRS for short meetings or meetings held on short notice. Complainant responded that S1 did not understand what she was going through and that FRS provided good notes for technical words.
By memorandum dated May 4, 2007, the LMER Manager denied Complainant's request to give contractor badges to the interpreters. In a July 26, 2007, e-mail to Complainant, FASD-1 stated that she was trying to obtain badges for three of Complainant's regular interpreters. Subsequently, in a January 23, 2008, memorandum responding to six of Complainant's reasonable-accommodation requests, RAC-2 noted that the Agency expected to change to a sole-source contract for interpretive services by April 1, 2008. RAC-2 stated that there would be five or six interpreters on site and that they would have access to the building without an escort. Until that time, RAC-2 offered to have HRD employees escort interpreters.
In the January 23, 2008, memorandum, RAC-2 also addressed Complainant's concern that some interpreters lacked knowledge of the terms and acronyms used at the Agency. RAC-2 noted that having a consistent group of five or six interpreters would increase the interpreters' familiarity with Agency jargon. In the meantime, RAC-2 offered to work with Complainant and management to develop a list of technical terms and acronyms to provide to the interpreters.
The Agency's contract with one interpretive-services company (Company A) ended in February 2008, and the Agency entered into a contract with a new company (Company B) in April 2008. The two contractors merged into one entity but initially continued to operate separately.
Complainant asserted that it was difficult to work with new interpreters, who were not familiar with Agency terminology and abbreviations. For example, in an April 24, 2008, e-mail to S2, Complainant stated that the interpreter signed "CI" instead of "CCI" and finger-spelled a word during a training presentation. S2 replied that it would take time for the new interpreters to become familiar with Agency terminology. She noted that, during the meeting, management reminded two presenters to speak slowly and team members repeated technical terms and spelled out acronyms.
In a series of August 8-12, 2008, e-mails, Complainant expressed a preference for interpreters from Company A. She listed the names of five interpreters whom she preferred and stated that she was not effective with different interpreters because the Agency uses technical terms. RAC-2 agreed to check on the availability of one of the named interpreters and to inform Company B of Complainant's preference for interpreters from Company A. She noted that, because the merged contractors were still operating separately, Company B could not yet use interpreters from Company A. She also noted that the goal was to have one, combined pool of interpreters from which the Agency could draw. Complainant first responded that she was lip-reading for effective communication because Company A's interpreters used signed English (ESL) and Company B's interpreters were strong with American Sign Language (ASL). In a second response, Complainant again stated that she did not want different interpreters because of the Agency's use of technical terms. RAC-2 replied that the on-site interpreter service was designed to provide Complainant with a consistent group of five or six interpreters and that the contract required Company B to provide interpreters who are proficient with ESL and ASL.
The Agency held a National Disability Awareness Month program on October 28, 2008. In response to a request from the Agency's EEO Office, HRD arranged to have an on-site/on-call interpreter at the event from 10:00 a.m. to 11:30 a.m. RAC-2 stated that no employee with a hearing disability told her that he or she would attend the program, and Complainant acknowledges that she did not notify Agency officials that she would need an interpreter for the event.
On the morning of the event, the contractor notified RAC-2 that the interpreter would be late because of illness. RAC-2, who was not at work, forwarded the contractor's message to the EEO Office. At 10:11 a.m., RAC-2 e-mailed the Agency's employees who are deaf to let them know that the interpreter was ill and would be late. At 10:15 a.m., Complainant sent RAC-2 an e-mail stating that she had gone to the program "at 10:12 for a peek" and did not see an interpreter. Complainant e-mailed RAC-2 at 11:15 a.m. to state that the interpreter arrived at approximately 10:40 a.m. and that she enjoyed the program until 11:10 a.m.
In her affidavits, Complainant stated that she attends weekly one-and-one-half-hour meetings and that different interpreters provide services for her at the meetings. Complainant asserted that the use of different interpreters places her at a disadvantage because the interpreters are not familiar with Agency terminology and are not trained to meet her needs. For example, Complainant asserted that the interpreters signed "FDA" instead of "FBA" and "evaluation" instead of "valuations."
In her affidavits, S2 stated that the Agency provides Complainant with her preferred interpreters when possible. When the preferred interpreters are not available, people limit the use of acronyms or spell out the acronyms.
With respect to Complainant's use of FRS in lieu of attending meetings, S2 stated that she believed that Complainant should attend meetings with an interpreter because FRS did not provide the best opportunity for Complainant to receive information from the meetings. S2 stated that she read an FRS transcript and found it difficult to follow. According to S2, employees are generally required to attend meetings in person and may call in for meetings if they are unexpectedly absent or have a medical flexi-place arrangement. She stated that managers generally schedule meetings for Tuesdays through Thursdays because most employees work at alternate locations on Mondays and Fridays.
Handouts, Agendas, Notes
Complainant asked that Agency employees provide her with handouts prior to meetings and that she receive notes describing the meetings' discussions after meetings. The record contains several e-mails from Complainant asking for notes before and after various meetings. The record also contains several e-mails from RAC-2, S2, S1, and other Agency employees responding to Complainant's requests. Complainant generally used the term "notes" to refer to handouts or other materials as well as summaries of meetings. In e-mails dated April 20, 2007, April 24, 2008, and September 29, 2008, S2 reminded employees to provide Complainant with copies of handouts before all meetings and training sessions.
In a March 21, 2008, memorandum responding to several of Complainant's reasonable accommodation requests, RAC-2 stated that management informed her that Complainant received notes from meetings and that all employees received monthly "management update" e-mails. RAC-2 agreed that this practice should continue. In addition, she noted that she had advised the training office "to make every attempt" to give training materials to Complainant in advance of the training. In an October 7, 2008, memorandum, RAC-2 determined that a staff member should provide Complainant with notes of meetings in which Complainant used an interpreter or when Complainant lip-read. For meetings in which Complainant used Computer Aided Real Time (CART) translation, RAC-2 would provide Complainant with a CART transcript if Complainant wanted one.
On November 3, 2008, an Auditor (E1) notified employees that a bankruptcy briefing would occur during the monthly, November 12, 2008, Management Compliance Unit (MCU) meeting for auditors. Complainant asked whether the meeting was a bankruptcy or MCU meeting, and E1 replied that they would use the MCU meeting for the bankruptcy briefing. On November 4, 2008, Complainant asked E1 for advance notes "if I attend." She received the meeting agenda approximately one hour before the meeting.
In her affidavits, Complainant stated that she likes to receive written confirmation of the discussions that occur during meetings to ensure that she does not miss anything. She asserted that she "continue[s] not to get notes after meetings."
Complainant also stated that she needs materials ahead of time because she cannot read notes and look at the interpreter at the same time. She explained that receiving notes before a meeting helps her and the interpreter to follow the meeting and that she needs to have notes because matters are becoming more technical. She asserted that many individuals provide the materials only five minutes to one hour before the meetings. According to Complainant, it was not realistic to receive notes one hour prior to a meeting because she had other work to do. Complainant argued that presenters should provide materials two days in advance and that the requirement to provide notes in advance should be included in employees' performance plans. She stated that S1 gave her notes in advance of team meetings but that two other Team Leaders did not. She also stated that she has to remind S2 to provide notes. According to Complainant, she received notes for other meetings but not for TPD-1 meetings.
With respect to the November 12, 2008, meeting, Complainant stated that she contacted the speaker directly to request notes. She asserted that E1 tends to provide handouts at the last minute and that there was no visual presentation at the meeting.
S2 stated that she or program assistants provide notes to Complainant after staff meetings and that agendas and handouts are provided before staff and team meetings. She also stated that she e-mails manager updates, which summarize information from staff meetings, to Complainant and other team members.
RAC-2 stated that Complainant has complained about not receiving written materials in advance of meetings. She also stated that, on March 21, 2008, she granted Complainant's request for notes in advance of trainings. She advised BAPD managers and the Agency's training institute to provide materials to Complainant in advance and to do so at least one week in advance where possible.
In her affidavit, E1 stated that the only information available prior to the November 12, 2008, meeting was the agenda, which she e-mailed to all auditors before the meeting. She also stated that there were no notes or visual materials for the meeting.
Training
Complainant asked the Agency to provide her with one-on-one training for training updates on such applications as LEO and ARIEL. She asserted that using an interpreter during the training sessions was ineffective because she could not look at a computer screen and watch the interpreter at the same time. On January 23, 2008, RAC-2 determined that Complainant should attend formal training sessions with an interpreter and would receive additional, one-on-one training after the formal sessions.
In a January 29, 2008, list of accommodation requests, Complainant stated that "busy charts" were not compatible with the use of interpreters and that she preferred on-line training diskettes. She also stated that receiving last-minute notices of training put her at a disadvantage. Complainant asserted that it is difficult to schedule good technical interpreters with less than one month's notice.
On February 12, 2008, Complainant requested interpreters for a March 4, 2008, LEO training and asked RAC-2 to speak to the trainer about his busy chart. Later that day, Complainant informed RAC-2, S2, and others that she was cancelling the interpreter request because of the busy chart. RAC-2 reminded Complainant of the January 2008 determination that Complainant should attend training with an interpreter and could receive one-on-one training after the formal session. Complainant replied that she could not attend the training if she could not follow the busy chart with an interpreter.
In her March 12, 2008, formal EEO complaint, Complainant asserted that managers continued to schedule auditors' training at the last minute. She asked for one-on-one training regarding "Form 5500" as a reasonable accommodation.
On March 21, 2008, RAC-2 informed Complainant that an alternative method of training would be appropriate when Complainant had difficulty following training because of busy charts. She stated that the determination of whether one-on-one training was appropriate would be made on a case-by-case basis. According to RAC-2, Complainant should use one-on-one training when she and the trainer agreed that it would be more effective. When Complainant and the trainer disagreed, Complainant should inform RAC-2, and RAC-2 would make the decision. RAC-2 stated that Complainant should inform her when training might be difficult because of busy charts and also stated that she would assist Complainant if Complainant felt uncomfortable approaching a trainer to request one-on-one training.
On October 30, 2008, the Agency announced two "OPSS Mini Sessions" for November 6 and 12, 2008. Complainant forwarded the announcement to RAC-2 and stated that she preferred to receive one-on-one training, RAC-2 asked whether Complainant needed her assistance, Complainant replied that S2 wanted employees to attend the session and that Complainant preferred one-on-one training, and RAC-2 asked whether Complainant wanted her to speak with the trainers. Complainant replied, "Again, another course is required for me to take at last minute notice." On November 4, 2008, RAC-2 provided Complainant with Power Point presentations for the Mini Sessions. RAC-2 stated that Complainant should use an interpreter for the training, which did not involve busy charts, and that Complainant could receive one-on-one training if an interpreter was not available. On November 6, 2008, RAC-2 notified Complainant that she had been unable to schedule an interpreter for the Mini Sessions and therefore would arrange for one-on-one training.
In her affidavits, Complainant stated that it was hard for her to schedule interpreters at the last minute and that she had not received sufficient notice of the November 6 and 12, 2008, training. She also stated that learned on November 5, 2008, that there would be all-day training on November 17 and 19, 2008, and that this too was insufficient notice. Further, Complainant told the EEO Investigator that is difficult to follow charts when using interpreters, especially if the charts are detailed, and that she requested one-on-one training when charts are "busy." She asserted that she had "difficulty with LEO, ARIEL, Data Dictionary Repository, etc." during training because the charts are too busy.
S2 told the EEO Investigator that Complainant requested one-on-one training on LEO on March 21, 2007, after the training had taken place. She stated that Complainant asked specific questions, that the information was covered in the LEO User's Guide, that S2 referred Complainant to the User's Guide and told her that they could discuss the questions after Complainant reviewed the Guide, and that they followed up during a weekly Tuesday meeting. S2 also stated that, until June 2007, she and Complainant met every Tuesday to discuss any issues Complainant had. S2 further stated that she provided one-on-one training on LEO and that Complainant does not use ARIEL.
Fiscal Year 2007 Performance Appraisal (Claim e)
In October 2007, Complainant received her performance appraisal for the period October 1, 2006, to September 30, 2007. S2 gave Complainant an overall rating of "Fully Effective." Complainant received an "Excellent" rating in Work Assignments Scheduling and Planning and "Fully Effective" ratings in Technical Expertise, Communications and Reports, Customer Service, and Teamwork. In narrative justifications for the different ratings, S2 noted that Complainant developed realistic work plans and met all of her target dates. S2 further noted that Complainant had a good understanding of concepts and issues but should develop her skills involving audit procedures/sampling, that Complainant consistently met audit-report deadlines but should improve her written communication skills, that Complainant was conscientious about keeping customers informed but that her unclear e-mails affected customer service, and that Complainant was willing to assist others but that there often was frustration among team members when Complainant sent them unclear e-mails.
In an October 25, 2007, e-mail to S2, Complainant argued that she deserved a higher performance-appraisal rating. She asserted that she should be rated "Outstanding" in Work Assignments Scheduling and Planning and that her performance deserved "Excellent" ratings in Technical Expertise, Customer Service, and Teamwork. With respect to Communication and Reports, Complainant argued that the Agency "should foster an environment where co-workers understand how to work with a deaf person" and asserted that her performance would improve if co-workers communicated with her via e-mail.
S2 met with Complainant to discuss her concerns. Subsequently, in a November 28, 2007, S2 denied Complainant's appeal. She concluded that the appraisal accurately reflected complainant's performance. S2 stated that consistency as well as quantity affected the Work Assignments Scheduling and Planning rating; that the Fully Effective ratings in Customer Service and Teamwork accurately reflected that Complainant was doing what was expected of her; and that the Communication rating was accurate because Complainant needed to improve her written communication. With respect to the Technical Expertise element, S2 stated that Complainant needed to work more independently and that the rating reflected the number of revisions to her audits and the amount of assistance she required.
Complainant told the EEO Investigator that she could not become a better communicator because ARIEL was a new language. She asserted that it was very difficult for her to learn ARIEL and LEO "in a classroom environment with a busy chart." S2 told the EEO Investigator that Complainant's performance appraisal was accurate and that it was not based on Complainant's ability to learn LEO.
Suspension (Claim g)
On September 5, 2007, S2 issued Complainant a Notice of Proposed Suspension for five work days. The notice charged Complainant with (1) creating a disturbance in the workplace and (2) physically confronting another employee and failing to follow supervisory instructions. It stated that, on June 5, 2007, S2 went to Complainant's office to instruct Complainant to contact TPD-1 managers if she had problems with employees in other departments. The notice further stated that Complainant became upset and began to shout, S2 ended the conversation, and Complainant blocked the door when S2 tried to leave. According to the notice, S2 asked Complainant to allow her to leave the office at least three times. The last time that S2 tried to open the door, Complainant grabbed her wrist from the door knob and pushed S2 away from the door.
The BAPD Director sustained the charges against Complainant and issued a Notice of Decision to Suspend on April 9, 2008. He concluded that a five-day suspension was appropriate but also proposed to reduce the penalty to a one-day suspension if Complainant agreed to receive counseling.
Complainant told the EEO Investigator that S2 came to her office and berated her. According to Complainant, S2's manner during the discussion violated the Agency's professional courtesy directive. Complainant asserted that she spoke loudly to S2 because she is deaf and cannot hear herself when she speaks. She also asserted that she touched S2's arm because she was trying to attract S2's attention.
S2 denied Complainant's allegation that she berated Complainant. She told the EEO Investigator that she went to Complainant's office to remind Complainant to speak with TPD-1 managers if she had problems with an employee in another division.
Hostile Work Environment (Claims a, b, and f)
Complainant asserted that the failure to provide her with such accommodations as notes from meetings and to place a reminder about the notes in other employees' performance plans created a hostile work environment. In addition, Complainant alleged that Agency officials treated her with hostility when she requested reasonable accommodation. For example, Complainant alleged that the LMER Manager was hostile to her, was not neutral, and supported managers. On May 4, 2007, after the LMER Manager denied Complainant's request to give contractor badges to the interpreters, Complainant sent him an e-mail asserting that his "letter is incorrect" and that she had a right to use FRS when other employees are on "flexi-place" and interpreters are not available. The LMER Manager responded on Sunday, May 6, 2007, and asked Complainant to "copy" her manager because "she has given [Complainant] specific instructions about when to use certain services." Complainant responded, "Hi. I do not think you have experience working with a deaf person. Thank you. Take care." The LMER Manager replied, "I think you are very rude and as a result you have alienated everyone around you. Why don't you come see me on Monday and we can work something out to be sure you are getting your needs met." He stated that the Agency was not required to provide the accommodation that an employee preferred and that any accommodation that satisfied the Agency's obligation was sufficient.
Complainant further alleged that S2 was not sensitive to her needs as a person who was deaf. For example, Complainant asserted that S2 read and spoke too fast at meetings and required her to attend meetings in person rather than use FRS. In an April 5, 2007, e-mail to S2, Complainant noted that S2 had talked fast during a staff meeting, and stated that she preferred to use FRS. S2 replied that Complainant should attend team meetings with an interpreter and stated that S2 would speak slowly in the future.
In addition, Complainant alleged that S2 mistreated her and was unprofessional toward her. She asserted that S2 came to Complainant's office "negatively" and that S2 would communicate in person even though Complainant preferred e-mails. She alleged that S2 came to her office with a "disappointing expression on her face" when Complainant used FRS for the May 4, 2007, team meeting. She asserted that S2 called her a "rattlesnake" or "pointed snake" in August or October 2008 and said that Complainant was spoiled with reasonable accommodation.
S2 denied making the comments and denied treating Complainant unprofessionally. She told the EEO Investigator that she has slowed her speaking pace and that she has asked Complainant to let her know if she speaks too fast. According to S2, she and Complainant agreed that Complainant would use a hand signal to alert S2 when she spoke too fast.
AJ Decision
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. Complainant timely requested a hearing. The Agency filed a Motion for a Summary Judgment, and Complainant filed an Opposition to the Agency's Motion. On August 4, 2011, the AJ issued a decision granting summary judgment to the Agency.
In her decision, the AJ found that that summary judgment was appropriate because the record was adequately developed and there were no genuine issues of material fact. Further, the AJ noted that there was no dispute that Complainant was a qualified individual with a disability.
The AJ further found that Complainant failed to demonstrate the existence of a genuine issue of fact regarding her claims that the Agency denied her requests for reasonable accommodation. The AJ noted that the Agency has obligation to provide an effective accommodation, not necessarily the accommodation of Complainant's choice. She concluded that the Agency took reasonable steps to provide Complainant with handouts and notes from meeting, found that the accommodation was effective, and noted that Complainant acknowledged receiving the meeting agenda prior to the start of the November 12, 2008, meeting. The AJ also concluded that, although some interpreters performed better than others, there was no dispute that the Agency provided interpreter services when they were needed. She determined that Complainant produced no evidence that the change in vendors made the accommodation ineffective. She noted, for example, that the Agency took steps to familiarize the interpreters with Agency terminology. With respect to the October 2008 National Disability Awareness Month program, the AJ noted that there was no dispute that Complainant did not inform the Agency that she planned to attend the program and did not request a reasonable accommodation. Accordingly, the Agency had no obligation to provide Complainant with an interpreter for the event. In addition, the AJ pointed out that Complainant's assertion that S2 spoke too fast related to an accommodation matter and concluded that Complainant failed to demonstrate that S2 refused her request after she asked S2 for a slower tempo. The AJ further concluded that Complainant failed to establish a genuine issue of fact that the alleged lack of sufficient notice affected the Agency's ability to provide interpreters for meetings.
In addition, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for the Fiscal Year 2007 Performance Appraisal and that Complainant failed to produce any evidence that the reasons were false or a pretext for discrimination. Similarly, the AJ found that Complainant failed to demonstrate a genuine issue of fact regarding S2's reasons for issuing the suspension.
The AJ also found that the incidents about which Complainant complained were not so severe or pervasive that they constituted unlawful harassment. Assuming that S2 made the "rattlesnake" or "pointed snake" and "spoiled" comments, the AJ found that they were isolated and sporadic and insufficient to create a hostile work environment. The AJ noted that Complainant alleged that Agency officials treated her with hostility when she requested reasonable accommodation and that S2 was insensitive to her needs as an employee with a hearing disability. The AJ also noted, however, that Complainant presented no evidence that the Agency denied her requests for reasonable accommodation. Moreover, the AJ found that Complainant presented no evidence that her membership in a protected class motivated any of the incidents. Viewing the evidence in the light most favorable to Complainant, the AJ determined that the incidents were insufficient to create a hostile work environment.
Finally, the AJ determined that Complainant failed to raise a genuine issue of fact to support her claims of disparate treatment. With respect to Complainant's assertion that S2 denied her request to use FRS for meetings but permitted other employees to attend meetings remotely by telephone, the AJ noted that Complainant used FRS under some circumstances. The AJ also noted that S2 stated that employees were required to attend meetings in person but could attend remotely if they were out of town or could not be present. The AJ found no evidence that any of the incidents at issue resulted from discrimination.
CONTENTIONS ON APPEAL
Complainant raises no contentions on appeal. The Agency argues that the AJ properly awarded summary judgment because there were no genuine issues of material fact concerning Complainant's claims that the Agency denied her requests for reasonable accommodation, subjected her to a hostile work environment, and discriminated against her on the bases of race, color, sex, or reprisal for protected EEO activity.
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), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both an AJ's decision to issue a decision without a hearing and the decision itself will 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 id. at Chap. 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 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").
ANALYSIS AND FINDINGS
Decision without a Hearing
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).
In the instant case, we find that the AJ's decision to issue a decision without a hearing was appropriate. The AJ viewed the evidence in the light most favorable to Complainant. The record has been adequately developed, Complainant was given notice of the Agency's Motion for a Decision without a Hearing, and she responded to the Motion. For the reasons discussed below, we find that, even assuming all facts in the light most favorable to Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly granted the Agency's motion for summary judgment.
Reasonable Accommodation (Claims c, d, f, h, and i)
Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. � 1630.2(o), (p). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance on Reasonable Accommodation"). An individual with a disability is "qualified" if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) ("the word 'accommodation . . . conveys the need for effectiveness). If more than one accommodation will enable an individual to perform the essential functions of his or her position, "the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide." 29 C.F.R. pt. 6130 app. �1630.9; see also Enforcement Guidance on Reasonable Accommodation at Question 9.
In this case, it is undisputed that Complainant is an individual with a disability and that she is a qualified individual with a disability who can perform the essential functions of her position with or without reasonable accommodation. Having reviewed the evidence of record, we agree with the AJ's determination that Complainant failed to demonstrate the existence of a genuine issue of fact regarding her claims that the Agency denied her requests for reasonable accommodation.
Even when viewing the evidence in the light most favorable to Complainant, we cannot say that the Agency denied Complainant's request for effective interpreter services. Complainant expressed a preference for certain interpreters and alleged that some of the new interpreters were not familiar with ESL or Agency terminology. The record establishes, however, that RAC-2 worked to establish a consistent group of interpreters who would become familiar with Agency terminology and that she also offered to develop a list of Agency terms and acronyms to provide to the interpreters. In addition, RAC-2 assured Complainant that the contract with the new vendor required the company to provide interpreters who were proficient in both ESL and ASL.
To the extent that the Agency refused Complainant's request to give badges to the interpreters to allow them to enter and leave the building unescorted, the Agency provided an effective alternative. S2 offered to have a program assistant escort the interpreters, and RAC-2 offered to have HRD employees escort interpreters.
Complainant alleged that the Agency failed to provide her with an interpreter for the October 28, 2008, National Disability Awareness Month Program. As the AJ noted, however, Complainant acknowledged that she did not notify Agency officials that she planned to attend the event and would need an interpreter. Therefore, the Agency was not required to provide Complainant with an interpreter for the event, and the interpreter's late arrival did not violate Complainant's rights under the Rehabilitation Act.
Complainant also alleged that the Agency failed to provide her with handouts and notes for meetings. The record establishes, however, that the Agency provided Complainant with notes and handouts and that S2 reminded employees to provide materials to Complainant before all meetings and training sessions. With respect to the November 12, 2008, meeting, we note that there was no visual presentation at the meeting and that Complainant received the agenda approximately one hour before the meeting. Even in light of Complainant's assertion that she had other work to do, we cannot say that her receipt of the agenda one hour in advance of the meeting was not an effective accommodation. Complainant has not demonstrated that a genuine issue of material fact existed regarding the provision of notes and handouts.
Similarly, Complainant has not demonstrated that a genuine issue of material fact existed regarding reasonable accommodation for training sessions. RAC-2 agreed to arrange for one-on-one training for Complainant when training might be difficult because of "busy" charts and also stated that she would assist Complainant if Complainant felt uncomfortable approaching a trainer to request one-on-one training.
Finally, there are no genuine issues of material fact regarding Complainant's request to use FRS rather than attend meetings in person and her assertion that S2 spoke too fast. Although Complainant preferred to use FRS, the provision of interpreters for meetings constituted an effective accommodation. In addition, S2 agreed to Complainant's request that she speak more slowly.
Viewing the evidence in the light most favorable to Complainant, we cannot say that he Agency failed to provide her with a reasonable accommodation. The Agency did not always provide Complainant with the accommodations that she preferred, but it provided her with effective accommodations.
Disparate Treatment (Claims e and g)
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish 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 Construction 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, 411 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 Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). An individual can engage in activity protected by opposing a practice made unlawful by the laws enforced by the EEOC or by filing a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under the laws. 42 U.S.C. � 2000(e)-3(a). A request for reasonable accommodation constitutes protected activity. Thus, in this case, Complainant engaged in protected activity when she requested reasonable accommodation as well as when she contacted an EEO Counselor and filed formal complaints.
We assume for purposes of analysis, without so finding, that Complainant has established prima facie cases of discrimination based on race, color, sex, disability, and reprisal. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions and that Complainant has failed to demonstrate that the articulated reasons are pretextual.
With respect to Complainant's Fiscal Year 2007 performance appraisal, we note that the appraisal included a narrative justification for the ratings that Complainant received in each of the elements. S2 stated that Complainant had a good understanding of concepts and issues but should develop her skills involving audit procedures/sampling, that Complainant should improve her written communication skills, that Complainant's unclear e-mails affected customer service, and that there often was frustration among team members when Complainant sent them unclear e-mails. Complainant disagrees with the ratings, but she has produced no evidence that the ratings were motivated by her membership in a protected group, or were inaccurate. For example, although Complainant argued that the Agency should provide an environment where co-workers understood how to work with a person who is deaf, she did not show that her e-mails in fact were clear to co-workers and customers.
Similarly, Complainant has produced no evidence to demonstrate that the five-day suspension was discriminatory. Although Complainant stated that her voice was loud when she spoke to S2 because she could not hear herself speak and that she touched S2's wrist to get S2's attention, she has not disputed that she blocked the door when S2 tried to leave Complainant's office. Complainant presented no evidence that another employee engaged in similar behavior with a supervisor but was not disciplined. To the extent that Complainant is arguing that her behavior resulted from the frustration that she experienced while requesting reasonable accommodation, we note that such frustration does not excuse Complainant's behavior.
Finally, to the extent that Complainant is asserting that the Agency subjected her to disparate treatment with respect to her reasonable accommodation requests or other matters, the record does not support that assertion. For example, Complainant has asserted that the Agency permitted employees who were on "flexi-place" to attend meetings telephonically, but she has offered no evidence that the Agency allowed employees who were in the office to do so. Further, the record does not support her assertion that Agency officials retaliated against her because she requested reasonable accommodation. There is no genuine issue of material fact that any of the incidents at issue occurred because of Complainant's race, color, sex, disability, or protected activity.
Hostile Work Environment(Claims a, b, f, and i)
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII or the Rehabilitation Act must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) she is a member of the statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. 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, 510 U.S. at 21. 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 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a "general civility code." Id.
With respect to element (5), an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Where the harassment does not result in a tangible employment action, an agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior and (2) that the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) (Enforcement Guidance on Vicarious Employer Liability). No affirmative defense is available when a supervisor's harassment results in a tangible employment action. Burlington Industries at 762-63; Faragher at 808.
In this case, we agree with the AJ's determination that, even when viewing the evidence in the light most favorable to Complainant, the record does not show that the Agency subjected Complainant to a discriminatorily hostile work environment. Managers' negative statements, such as S2's "rattlesnake" or "pointed snake" and "spoiled" comments2 and the LMER Manager's May 2007 assertion that Complainant was "rude," were not so severe or pervasive as to rise to the level of harassment. Similarly, the behavior of S2 and HRD managers, even in light of the negative statements, was not sufficiently severe or pervasive that it created a hostile work environment. Moreover, as the AJ noted, Complainant adduced no evidence that discriminatory or retaliatory animus motivated the incidents at issue. Accordingly, we find that the AJ properly granted summary judgment to the Agency on this issue.
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 order, which implemented the AJ's finding of 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
September 9, 2014
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2007-2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
2 Although these comments, without more, are insufficient to support a claim of harassment, we nonetheless note that we find the alleged "spoiled" comment particularly disturbing, as it implies that special treatment is being granted as a boon. The Agency is reminded - and should remind its managers and supervisors - that a qualified individual with a disability who is provided with reasonable accommodation is receiving assistance to which he or she is legally entitled, and the Agency is legally obligated to provide, in order for the individual to successfully perform the essential functions of his or her position.
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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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