0120112930
02-19-2015
Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120112930
Hearing No. 570-2009-00828X
Agency No. 09-63-00067
DECISION
On May 13, 2011, Complainant filed an appeal from the Agency's April 12, 2011, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 Geographer at the Agency's Geography Division, U.S. Census Bureau facility in Silver Spring, Maryland.
On February 13, 2009, Complainant filed an EEO complaint alleging that the Agency subjected her to a discriminatory hostile work environment on the bases of disability (temporomandibular joint disorder and an acute exacerbation of cervical and lumbar spine, as well as injuries to her neck, shoulders, arms, knees, hips, pelvis and back), age (40), and/or reprisal for prior protected EEO activity when:
a. In February 2008, she requested accommodation be provided, but her supervisor (Supervisor) failed to provide her with the requested accommodations.
b. In July 2008, when she filed a formal request for reasonable accommodations with the Human Resources Division (HRD), the Supervisor, despite being told by HRD personnel that the required medical documentation was to be provided only to HRD, insisted that she provide the confidential medical documentation to her.
c. The Supervisor distributed "hard copies" of her confidential medical information to other Team Leads and the Branch Chief.
d. The Supervisor told Complainant that she did not agree with the accommodations requested and told her to ''just pick up some magnifying glasses at CVS."
e. After she located an ergonomic chair in another team's work space that was not in use, and was told by the Team Lead that the chair was not needed in that work unit, the Supervisor verbally "berated" her and removed the chair from her workspace. The Supervisor also told her that she "had to learn the consequences" and was punishing her for filing the formal request with HR for accommodations" and not following her chain of command." The Supervisor further told her that her request would take eight (8) to ten (10) weeks to process and that she "had to sit back and wait."
f. The Supervisor failed to cooperate with HRD's numerous attempts to follow up with her on Appellant's request for reasonable accommodation.
g. The Supervisor told another employee who followed up on the reasonable accommodation request that she had in fact received "all of her requested accommodations."
h. After a worsening of her impairments due to not receiving the requested accommodations, she requested the right to bring in her own equipment to the workplace. However, the Supervisor refused her request.
i. The Supervisor provided Complainant with an interim performance review in which she told her that her work was very good, but that she was failing her in the area of "customer service" because the Supervisor considered herself to be her "customer" and "was not satisfied."
j. The Supervisor repeatedly made inappropriate comments to her about her age, including asking her how old she was and dismissing her need for accommodations as simply "aches and pains" associated with her age.
k. The Supervisor would yell at her in the office. On one occasion, the Supervisor confronted Complainant in the workspace and stepped very close to her, "flinging her arms" at her as she yelled. In response, Complainant told the Supervisor that she was "scared" and asked her to step away from her. The Supervisor told her that they should both walk to the office of the second-line supervisor (SL Supervisor), and wait for him to return. However, she refused to do so out of concern for her personal safety. As a result, the SL Supervisor reprimanded Complainant for failing to follow the Supervisor's instructions.
l. Despite finding a position to transfer to in her old division, the Agency refused to allow her to transfer.
m. The Supervisor removed all of her duties and assignments, eventually leaving her with only the duties of attending a monthly meeting and recording the minutes of the meeting.
n. Her co-workers and the Supervisor began referring to her as a "fuckin' bitch" and a "fuckin' tard" and would mimic her limp. Despite reporting these actions to the Supervisor, she did not stop the co-workers and even laughed along with them as they insulted her. Further, the Supervisor told her that the employees were 'just initiating her into their friendship circle."
o. Despite reporting the harassment to the SL Supervisor, he failed to take appropriate corrective action. Instead of addressing the issues, the SL Supervisor reprimanded her for "failure to follow the chain of command."
1. On February 4, 2009, she was terminated from her term appointment during her probationary period.
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 timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Complainant appealed. She asserted that she was subjected to workplace harassment based on her disability and her prior protected activity in the form of her request for a reasonable accommodation. She asserted that she made her earliest request in February 2008, but clearly the Supervisor indicated that she was aware of the requests for reasonable accommodation by April 2008. Further, at that time, Complainant provided the Supervisor with medical documentation regarding her disability. Therefore, Complainant argued that she established that the Agency was aware of her prior protected activity and her disability. She then argued that she established a nexus between her protected bases and the alleged harassment. She claimed that the Agency subjected her to a hostile work environment that resulted in a tangible employment action, namely the denial of reasonable accommodation and termination.
Complainant then turned to her claim of disparate treatment. She alleged that she was subjected to discrimination and retaliation when she was terminated from her position with the Agency during her probationary period. She asserted that she heard co-workers refer to her as the "crip" and "tard." She also claimed that they would make fun of her limp. She also noted that she engaged in protected activity in the form of requesting reasonable accommodation. She also asserted that the Agency's reason for the termination was pretext for discrimination based on the lack of credibility and discriminatory animus displayed by the Supervisor. Further, Complainant claimed that the temporal proximity established pretext.
In addition, Complainant alleged that she was subjected to a violation of the Rehabilitation Act when the Supervisor disclosed her medical records to others.
The Agency requested that the Commission affirm its decision finding no discrimination was proven in this case.
ANALYSIS AND FINDINGS
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").
Unauthorized Medical Disclosure
The Americans with Disabilities Act of 1990 (ADA)1 requires employers to treat as confidential medical records all information obtained regarding the medical condition or history of an employee. 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14(b)(1). Such information includes any medical information voluntarily disclosed by an employee. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, General Principles section in Background discussion (July 27, 2000). Improper Agency disclosure of such medical information constitutes a per se violation of the Rehabilitation Act. Vale v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997). This is true even if the complainant does not have a disability. Young v. U.S. Postal Serv., EEOC Appeal No. 0120112626 (Oct. 3, 2011).
The evidence shows that the Supervisor received Complainant's medical documentation which was in turn given to Human Resources. The medical documentation was requested in support Complainant's reasonable accommodation. There is no evidence, beyond Complainant's mere assertion, that any of her medical records were unlawfully disclosed. While Complainant asserts that the Program Analyst received copies of the medical documentation from the Supervisor, the Program Analyst denies it and Complainant has provided no proof to the contrary. Therefore, we find that Complainant has not shown that the Agency violated the Rehabilitation Act.
Denial of 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 the agency 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).
It is the Commission's position that if more than one accommodation is effective, "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." 29 C.F.R. � 1630.9; see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9 (revised Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation); Polen v. Dep't of Defense, EEOC Appeal No. 01970984 (Jan. 16, 2001). Thus, while complainant may be entitled to an effective reasonable accommodation under the Rehabilitation Act, she is not entitled to the accommodation of her choice.
An employer should respond expeditiously to a request for reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation, at question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation of the ADA. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Id. at n. 38.
Upon review of the record, Complainant indicated that she began requesting reasonable accommodation in March 2008. She noted that she needed a wrist guard, an ergonomic keyboard, an ergonomic chair and a second monitor. She made the request in March 2008 to the Supervisor. She stated that she received the monitor but noted that she received a smaller one before getting the size she needed. As for the chair, Complainant stated that she found one in another office which was not being using in April 2008. She took it and was asked by the Supervisor where she got the chair. Complainant had to return the chair. Complainant took the issue to the Disability Program Managers who followed up with the Supervisor. Eventually, Complainant was given the ergonomic chair by the Supervisor. The Disability Program Manager averred that he followed up with Complainant and she indicated that she received everything she needed. We note that Complainant asserted that the Supervisor delayed in providing her with the requested accommodations, her affidavit lacked specificity and clarity in order to determine exactly when the requests were made and when the accommodations were provided. Further, the record indicated that Complainant was asked to provide medical documentation to support her requests. It appears that the items were requested between March and April 2008 and they were provided by June and July 2008. After examining the record as a whole, we determine that, under the facts of this case, Complainant has not shown that any delay was sufficient to establish a violation of the Rehabilitation Act.
Termination
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).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for the termination. The Supervisor indicated concern with Complainant's work performance in her interim report in July 2008. Further, the Supervisor provided Complainant with verbal and written concerns regarding her work place behavior in July 2008. The termination notice indicated and Complainant's performance appraisal showed that Complainant was performing at a "Level 2." Complainant failed to provide work in a timely manner and was deficient in her work performance. Despite the Supervisor's attempts to assist Complainant perform, she failed to improve. As such, Complainant was terminated during her probationary period. We turn to Complainant to establish that the reasons constituted unlawful discrimination. Complainant contests the Agency's reasons. However, we find that Complainant's assertions alone do not establish that the Agency's reasons were pretext for discrimination based on her presumed disability, age and/or prior protected activity.
Harassment
It is well-settled that harassment based on an individual's age, disability and prior protected 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) she is a qualified individual with a disability covered under the Rehabilitation Act, her age, and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her disability, age, and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with 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 Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that Complainant has not shown that she was subjected to unlawful harassment. There is no corroborating evidence that others in the workplace referred to Complainant as "tard" or "crip" or that others would mimic her walk. The affidavits from Complainant's co-workers denied that any such comments or actions ever occurred in the workplace. Several of the events Complainant raised involved her requests for reasonable accommodation. As noted above, we determined that Complainant did not show that the Agency's actions constituted a violation of the Rehabilitation Act. Further, we determined above that Complainant did not establish that the termination constituted discrimination based on her disability, age, and/or prior protected EEO activity. Reviewing the record as a whole, we find that Complainant has not established that she was subjected to a hostile work environment.
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
February 19, 2015
__________________
Date
1 The Rehabilitation Act was amended so that the standards under Title I of the ADA would be applied to employment discrimination cases under the Rehabilitation Act.
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0120112930
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112930