0120152261
10-31-2017
Isaiah P,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Isaiah P,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Appeal No. 0120152261
Hearing No. 570-2011-01015X
Agency Nos. 115623, 125607
DECISION
On June 20, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 8, 2015, final order concerning his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Attorney-Advisor (GS-15) at the U.S. Patent and Trademark Office, Office of the Administrator for Policy and External Affairs, in Alexandria, Virginia.
Complainant is appealing two separate decisions issued on April 27, 2015 by an EEOC Administrative Judge ("AJ"), both referenced under EEOC Hearing No. 570-2011-01015X.
Agency Case No. 115623 ("Complaint I")
(a) On March 31, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (chronic back pain) when:
1. On or about February 3, 2011, he was asked to complete additional medical forms regarding his permanent medical condition in order to maintain his reasonable accommodation, even though he had previously provided the documentation;2
2. On or about February 16, 2011, his supervisor was instructed to look for alternate non-disabled people to send to work events;
3. On or about March 22, 2011, the Agency failed to keep his requests for reasonable accommodation confidential;
4. On or about May 11, 2011, he was denied a reasonable accommodation of premium air travel;
5. Since May 2009, Complainant's reasonable accommodation was not processed in a timely manner;
6. On or about April 2011, irrelevant questions regarding performance and conduct were asked of his supervisor, resulting in a hostile work environment; and
7. On July 1, 2011, his request for reasonable accommodation was denied.
(b) Complainant added the following claims, alleging that the Agency discriminated against him on the basis of retaliation for prior protected activity (Agency Case No. 115623) when:
1. Since March 23, 2011, his request for reasonable accommodation was deliberately prolonged;
2. On March 22, 2011, his permanent waiver which allowed a reasonable accommodation was revoked the day after he received his "Notice of Right to File a Formal Complaint" form;
3. Since April 2011, Complainant has been dropped from serving as Acting Director of Global Intellectual Property Academy where he regularly served in that role;3
4. On or about May 15, 2011, he was admonished for raising performance deficiencies of administrative staff with their supervisor, a practice he routinely engaged in without admonition;
5. Since March 23, 2011, the Agency used interference, coercion, and intimidation when he sought reasonable accommodation; and
6. On July 1, 2011, his request for reasonable accommodation was denied.
Agency Case No. 125607 ("Complaint II")
On December 22, 2011, Complainant filed another formal complaint, alleging that the Agency discriminated against him on the basis of retaliation, for prior protected activity (Agency Case Nos. 115623 and 115680), when: 4
On October 26, 2011, he received a performance appraisal rating of "Commendable" instead of "Outstanding" for Fiscal Year 2011.
At the conclusion of the investigations, the Agency provided Complainant with a copy of the reports of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. The AJ assigned to Complainant's case determined that the matter was suitable for summary judgment. The AJ found the following undisputed facts, as set forth below.
Complainant began working as an Attorney Advisor for the Global Intellectual Property Academy ("GIPA") within the Agency's Office of the Administrator for Policy and External Affairs in 2005. The GIPA Director was his first level supervisor ("S1"), and the Deputy Director of External Affairs was his second level supervisor ("S2"). International travel was an essential function of Complainant's job, routinely requiring air travel lasting longer than 4 hours.
Reasonable Accommodation
Complainant suffered from a chronic lower back pain which was exacerbated when he sat for longer than 20 minutes at a time. When traveling by plane, Complainant found that business class (also referenced as "premium") seating provided him with enough space to position himself in a manner that would minimize the pain caused by prolonged sitting. Prior to 2009, Complainant was able to fly business class by submitting a request to the Travel Office within the Agency's Office of the Chief Financial Officer ("CFO" or "Travel Office"), which authorized all Agency travel requests. In January 2009, CFO implemented a stricter upgrade policy after the Government Accountability Office ("GAO") issued a report identifying government-wide "improper and abusive use of premium class travel." Among other things, CFO stopped its practice of automatically granting employee requests for seating upgrades on flights lasting over 14 hours, and required employees requesting business class upgrades for medical reasons to provide supporting documentation. In March 2009, Complainant contacted the Agency's Office of Equal Opportunity and Diversity ("EEO Office"), which oversaw reasonable accommodation requests by employees with disabilities, to request business class seating a reasonable accommodation for his lower back pain.5
In April 2009, Complainant stopped pursuing reasonable accommodations through the EEO Office because the Lead Accountant on the Finance Travel Team ("Lead Accountant") informed him that CFO could authorize seating upgrade requests as "special accommodations" (also referred to as "travel accommodations" or medical waivers) based on "special need" or "medical disability" without EEO documentation, so long as Complainant submitted a doctor's note. Complainant provided her with a May 4, 2009 Physician's Statement signed by his doctor, which explained that due to a permanent condition of lower back pain, it was "strongly recommended [that Complainant fly] business class on travel that exceeds 4 hours [to] significantly reduce pain level and chance of exacerbating his injury." CFO temporarily granted Complainant's request on May 7, 2009, then, based on the same note, made the accommodation permanent on April 29, 2010.
On March 22, 2011, the Lead Accountant notified the employees, including Complainant, with medical waivers on file, that in order to keep their medical status, they must reapply for travel accommodations. CFO had revised its travel accommodation policy again in light of an agency-wide budget freeze and the promulgation of new government-wide reporting regulations. The Lead Accountant provided them with the new form to be completed by their doctors, due back to CFO by May 2, 2011. Among other things, the form requested information about the feasibility of alternate (more cost-effective) accommodations, such as booking aisle or exit row seats, two adjoining seats, or booking flights with layovers for shorter travel segments. Complainant declined to submit a completed form, citing CFO's determination in 2010 that his travel accommodation was not subject to annual renewal because his medical condition was permanent. Complainant also noted the Lead Accountant had contacted him (and the other employees with medical waivers) in reference to his medical condition through the "Travel Mailbox" accessible by 8 other employees on the Travel Team. The Lead Accountant responded, "[t]hough I am coordinator for special travel accommodations, I rely on the rest of the Travel Team to work with me and support the travel program when I am not available." Complainant would not provide additional documentation, and his CFO medical waiver qualifying him for premium seating was revoked.
On or around March 30, 2011, Complainant contacted EEO Office a second time, again requesting business class seating as a reasonable accommodation for his chronic lower back pain. Throughout April and May, his assigned EEO Specialist attempted to engage in the interactive process to determine the best reasonable accommodation for both Complainant and the Agency, which also included discussing accommodations with Complainant's supervisors and a request to speak with Complainant's physician. Complainant did not grant permission to contact his physician, but instead, provided her with the May 4, 2009 Physicians Statement. When the EEO Specialist requested updated medical documentation, Complainant said that this was unnecessary, as the documentation he provided already stated that the condition was permanent. The EEO Specialist asked if Complainant would be willing to contact his physician to obtain answers to the list of EEO questions about reasonable accommodations that she would have asked. Complainant would not do this either, so the EEO Specialist asked him to provide his opinions about the alternate accommodations.
On April 19, 2011, Complainant responded by directing the EEO Specialist to "proceed with my request for reasonable accommodations with the information you already have;" but offered, "should the agency wish to hire a doctor in order to inform its conclusions on alternate accommodations, I would agree to a physical exam or the release of the medical documentation submitted." The EEO Specialist arranged an exam with an orthopedist through the Federal Occupational Health Services ("FOHS") for May 26, 2011. Per FOHS requirements, Complainant was asked to fill out forms and sign a release. Complainant declined and told the EEO Specialist that she would hear from his doctor "next week some time." On June 6, 2011, Complainant again instructed the EEO Office to provide him with business class seating as a reasonable accommodation based on the information she already had. On July 1, 2011, the EEO Office, after consulting S2, denied Complainant's reasonable accommodation request because he "refused to engage in the interactive process."
On July 13, 2011, three days before he was scheduled to take an international flight to last over fourteen hours, Complainant submitted a new doctor's note dated June 1, 2011, explaining that he thought his physician already mailed it to the Agency. CFO provided Complainant with a "one time" business class waiver. On July 15, 2011, Complainant contacted S2's supervisor, the External Affairs Director ("S3"), and requested reconsideration for his EEO Office reasonable accommodation request. On August 12, 2011, the EEO Office again requested answers from Complainant or his physician about alternate reasonable accommodations. Again, Complainant said he would not submit further documentation. On October 12, 2011, S3 denied Complainant's request based on "inadequate medical documentation and refusal to engage in the interactive process."
Admonishment
On May 2, 2011, Complainant emailed a GIPA Program Specialist ("P1") who was supporting him on a project, after she told him to only contact her, not other employees, for matters relating to that project. Complainant copied P1's supervisor ("P2"), P2's supervisor ("P3"), and S1 on the email, which read: "Do not ever give me direction. I can't make it more clear than that. Ever, for any reason...[P2] please follow up and make sure this doesn't happen again." Several days later, Complainant told P1 that "[P2] shouldn't be a supervisor and that he and [S1] were talking about it." Believing that Complainant was insinuating that S1 would have P2 fired, P1 notified P3.
P3, as the Supervisory Management and Program Analyst, reported to S2 as her first level supervisor, and was responsible for all non-attorney administrative staff in GIPA. S1 recounted in the record that P3 "was very upset about [Complainant's email to P1 and comments about P2] and discussed this first with [S1] and then with [S2]." Meanwhile, P2, concerned for her job, notified P3 and reported the incident, as well as instances of support staff complaining to her about Complainant's behavior, to the Supervisory Human Resources Specialist ("H1"). H1 met with P3 and S2, who discussed the matter with S1. On or around May 15, 2011, at H1's suggestion, S1 informally counseled Complainant about his interactions with support staff. Complainant was not subject to disciplinary action, however, going forward he was to raise his complaints about the support staff with S1 instead of P3.
Performance Appraisal
On October 29, 2011, Complainant received his 2011 Performance Appraisal ("PA"), which provided his highest score to date, and an overall rating of "Commendable." Complainant learned that S1 initially provided him with an overall rating of "Outstanding," and that S2, exercising her authority as Complainant's senior rater, changed the overall rating to "Commendable" citing Complainant's "attitude." When S2 signed off on Complainant's 2011 PA, both she and S1 were aware of Complainant's prior EEO activity, including Complaint I, which named S2 as a responsible management official, and was still pending. However, both S1 and S2 assert that S2's decision was not based on reprisal.
As Complainant's first level supervisor, S1 scored Complainant's PA, then submitted it to S2 for final approval. S1 had years of supervisory experience within the Agency, but he had only supervised Complainant and other attorneys with his position description for under a year. As Complainant's senior rating supervisor, S2 was not bound to S1's recommended score. Upon review, S2 believed that S1 did not apply the Agency's Generic Performance Standards properly, because, in order to receive an "Outstanding" rating under this metric, the employee must also have strong interpersonal skills, taking into consideration whether he or she "promotes cooperation." S2 asked S1 to reconsider his initial "Outstanding" rating based on the Human Resources training they took, the Agency's Generic Performance Standards, and in light of the May 2011 complaints about Complainant's conduct raised by support staff, particularly those giving rise to the May 15, 2011 "admonishment." S1 did not think Complainant's conduct merited a lowered rating, so he submitted it again without changes. S2 exercised her discretion, and lowered the "Outstanding" to "Commendable."
On March 19, 2013, the Agency submitted a motion for a decision without a hearing, which, over Complainant's objections, the AJ granted, issuing a decision without a hearing on April 27, 2015. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
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. (Aug. 5, 2015) (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").
Complaint I(a) Discrimination on the Basis of Disability
The Commission's regulations require an agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such 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).
For purposes of this analysis, we presume that Complainant is a qualified individual with a disability.6 Also, consistent with the Agency and AJ's decisions, we will analyze claims arising from Complainant's requests for accommodations for his disability based on whether the requests were processed through the CFO Travel Office or the Agency's EEO Office.
I(a) Claims 1 and 4 - Travel Accommodations (CFO)
The Rehabilitation Act places certain limitations on an employer's ability to make disability-related inquires or require medical examinations of employees. Such inquiries and examinations are only permissible if they are job-related and consistent with business necessity. 29 C.F.R. �� 1630.13(b), 1630.14(c). Our Enforcement Guidance provides, that "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." Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (July 27, 2000). In these instances, the employer is entitled only to the information necessary to determine whether the employee can do the essential functions of the job. 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.
To alleviate the "severe financial constraints" caused by an Agency-wide budget freeze, the Office of the Chief Financial Officer ("CFO") surveyed all offices within the Agency, including its own Travel Office to identify and implement cost-saving measures. The CFO Travel Office identified premium seating as a high cost expense, noting that it was approving medical waivers without considering less expensive accommodations. Meanwhile, the GAO Report resulted in new regulations that required Agencies to report and justify all travel "other than coach class." All government agencies had to develop "clearly defined internal controls," which along with the need to determine whether alternate accommodations were feasible for each individual with a medical waiver, prompted the CFO to create a standard form to be completed by any employee seeking a special accommodation. See Office of Management and Budget ("OMB"), Memorandum "Clearly Defined Internal Controls," (Jan. 2008).
For Claim 1, Complainant appears to argue that the Agency made impermissible disability related inquiries when it sent medical forms, including the March 22, 2011 CFO Travel Office application to "reapply" for his travel accommodation of premium seating on flights over 4 hours. Complainant contacted the Lead Accountant, arguing that it was unnecessary for him to "reapply" for a travel accommodation because CFO already accepted his 2009 Physician's Statement. He aptly notes that CFO already accepted the 2009 Physician's Statement a year earlier, as proof that his medical condition, lower back pain, was permanent, warranting premium seating on all flights over 4 hours long. The Travel Office policy at the time he submitted the documentation supports Complainant's contention that he did not have to provide any additional medical documentation to maintain his accommodation. The Lead Accountant explained that the Travel Office changed its accommodation policy and could no longer accept just a doctor's note. Now, all employees requesting travel accommodations would have to fill out the same form and provide the same information, including information about the feasibility of alternate accommodations in addition to premium class seating. Complainant declined to submit additional paperwork, and sought a reasonable accommodation through the EEO Office.
Claim 4 alleges that the Agency denied Complainant reasonable accommodations on or around May 11, 2011 when he found out his CFO travel accommodation of business class seating had been revoked. The Agency's proffered legitimate nondiscriminatory reason for was that Complainant failed to submit the additional documentation CFO requested by the deadline of May 2, 2011. Complainant does not dispute that he was aware of this deadline, as it was explained in the March 22, 2011 application letter, but continues to argue that he already provided sufficient documentation.
From Fall 2010 through 2011, the Agency reviewed and revised its travel accommodation policies because of new, increased oversight regarding usage of premium class travel. Federal Travel Regulations ("FTR") are promulgated by the General Services Administration ("GSA"), which also provides government-wide policy and interpretation of the FTR and related requirements "ensuring that official travel is conducted responsibly while minimizing administrative costs. Throughout 2010 and 2011, GSA developed new policy and regulations for premium travel. The GSA Office of Asset and Transportation Management, "Interagency Travel Management Committee," provided a forum for agencies to resolve "common interests relating to the effective utilization of FTR." In June 2010 the GSA published a bulletin entitled "Directions for Reporting Other than Coach Class Accommodations for Employees on Official Travel," which the Agency worked to implement by revising its policy further, and implementing the changes in March 2011 by requesting additional information from individuals requesting travel accommodations.7
For both Claim 1 and Claim 4, Complainant has failed to establish that the Agency's legitimate nondiscriminatory reason for requesting additional information, a new travel policy, was pretext for discrimination. Further, we find that the Agency met its burden to show that its requests for additional information regarding Complainant's reasonable accommodation were "job-related and consistent with business necessity." As the AJ previously noted, CFO's request was part of a "uniform application of a new travel policy to all individuals with travel accommodations on file," indicating a lack of discriminatory motivation and "consistent with business necessity."
I(a) Claims 1, 5 and 7 - Reasonable Accommodations (EEO Office)
A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. See Bryan R. v. United States Postal Serv., EEOC Appeal No. 0120130020 (Mar. 20, 2015), citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). When an individual's disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his or her disability and functional limitations. EEOC No. 915.002. Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has a disability within the meaning of the Rehabilitation Act and that the disability necessitates a reasonable accommodation. If an individual's disability or need for accommodation is not obvious, and he refuses to provide the reasonable documentation requested by the employer, then he is not entitled to reasonable accommodation.
The EEO process for obtaining a reasonable accommodation requires agencies and complainants to engage in an "interactive process" regarding reasonable accommodations to determine the best options for both the employee and management. Employees who refuse to cooperate in that process are not entitled to an accommodation. See Carleen L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120151465 (May 12, 2017), citing EEOC No. 915.002; see also Zachary K. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130795 (Nov. 19, 2015). When a complainant will only agree to a specific accommodation that would be particularly costly to the Agency (i.e. an "accommodation of last resort") the interactive process is used to determine "that there are no other accommodations that would enable [Complainant] to perform the essential function of [his] position without imposing an undue hardship upon the Agency." See Oda H. v. United States Postal Serv., EEOC Appeal No. 0120151451 (Jul. 26, 2017).
Claim 1, referenced in the previous section, alleges that the Agency required him to fill out additional forms, including the EEO Office's requests in March and April 2011 for medical documentation to support the reasonable accommodation request he initiated in March 2011. Complainant's bald assertions that the requests were "unnecessary" and simply "homework" exercises requiring him to "jump through hoops" are insufficient to establish discrimination. Instead, the record supports that the document requests were reasonable and consistent with our regulations and guidance, as Complainant only provided the EEO Specialist with a doctor's note dated two years earlier that lacked necessary information, such as the feasibility of alternate, more cost effective accommodations. There is no indication that Complainant was somehow targeted because of his disability or that the requests were unreasonable. Rather, the EEO Specialist making the requests was exercising due diligence consistent with all requests for reasonable accommodations by attempting obtain Complainant's cooperation in the interactive process.
Claim 5, which alleges that the EEO Office failed to process Complainant's initial 2009 reasonable accommodation request in a timely manner, is undermined by Complainant's own account in the record. Complainant essentially withdrew the 2009 EEO Office request when he was able to obtain a travel accommodation of business class seating through the Travel Office in May 2009. An employee must participate in the interactive process to obtain a reasonable accommodation. On appeal, Complainant presents no evidence that he attempted to engage with the EEO Office again with regard to business class seating until March 2011.
In Claim 7, Complainant alleges that the Agency denied his request for a reasonable accommodation through the EEO Office. We find the Agency provided legitimate nondiscriminatory reasons for its actions. The record and Complainant's briefs on appeal indicate that Complainant declined to participate in the interactive process both because he found it inconvenient, and because he already identified the reasonable accommodation he preferred, business class seating on all flights lasting over four hours. For more costly accommodations, the Agency may determine if a less costly equally effective accommodation is available through the interactive process, which Complainant refused to participate in. Refusal by Complainant to engage is a legitimate nondiscriminatory reason to deny a reasonable accommodation request. We also note that the Agency granted Complainant's request to reconsider its dismissal, but dismissed his request again when he failed to cooperate a second time.
I(a) Claim 2 - Travel Preference Given to Employees without Disabilities
Under the Rehabilitation Act, an employer cannot prefer or select a qualified individual without a disability over an equally qualified individual with a disability merely because the individual with a disability will require an accommodation. 29 C.F.R. App. Pt. 1630 Interpretive Guidance on Title I of the ADA, � 1630.9(b). Here, Complainant failed to provide sufficient evidence that he was subject to an adverse employment action, the third element comprising the prima facie case for disability discrimination. The AJ aptly notes that the "[Agency] approved Complainant's travel in question, and indeed never denied a travel accommodation request for a reason other than failure to provide sufficient documentation." Even those instances, the record supports that Complainant was still provided "temporary accommodations" by OFC, allowing him to fly business class. Without establishing a prima facie case, it is unnecessary to proceed with the McDonnell Douglas disparate treatment analysis.
Complainant argues that under McDonnell Douglas he did not need to establish that he was personally impacted by an adverse action because he established an inference of discrimination, thereby warranting a hearing. However, Complainant has not offered evidence that Management's alleged discussions about limiting travel assignments to employees without disabilities to avoid paying for upgraded seating, were based on anything more than rumors.
Although he provides a January 6, 2011 email from the Acting Chief to S2, that asks whether S2 "explored any other options for...alternate means...other employees who do not require business class," Thus, even if Complainant could establish a prima facie case to support his allegation in Claim 2 of Complaint I(a), he has not proven by a preponderance of the evidence that the Agency's legitimate nondiscriminatory reason for its actions was pretext for discrimination. Testimony by Agency officials shows that because of the budget freeze, they assessed all travel, regardless of disability status, to determine if it was absolutely necessary before approving it. Requests for alternate reasonable or travel accommodations that are effective but less costly than premium seating were nondiscriminatory in light of the budget freeze and governmentwide policy overhaul for premium seating on flights.
I(a) Claim 3 - Medical Privacy
Under the Rehabilitation Act, information concerning the "medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record . . . ." 29 C.F.R. � 1630.14(c)(1); see also 42 U.S.C. � 12112(d)(4)(C). Only under limited circumstances may an Agency disclose an employee's confidential medical information.
Complainant's doctor's notes and all communication regarding his accommodation requests, sent to both the EEO Office and the Travel Office, constitute confidential medical records, protected under the Rehabilitation Act. We find it reasonable that the Lead Accountant on the Finance Travel Team had access to Complainant's medical information and accommodation request, as she was responsible for approving all CFO travel accommodation requests. As noted in the AJ's decision, the March 22, 2011 email from the Lead Accountant was sent individually to Complainant to inform him that the Agency was changing its policy for Special Travel Accommodations, and as such, there was a requirement that he complete a new medical form to assist the Chief Financial Officer in determining whether he was entitled to premium travel. The email was sent from the Travel Mailbox, and the eight members of the travel team had access to the mailbox. Complainant responded to the Travel Mailbox indicating he was "not inclined to fill out any new paper." The Lead Accountant responded, again explaining the new requirements. The record shows that Complainant submitted his accommodation request and physician letter to the EEO Office instead of a travel accommodation through the Travel Office.
We agree with the AJ's finding that there was no evidence that anyone other than those processing his travel accommodations had access to the Travel Mailbox. In the absence of the Lead Accountant, the travel team members who assisted her when she was absent had a "need to know" that he had an approved travel accommodation. However, there is no evidence that any medical information was disclosed to them.8 Complainant did not show that his medical information was disclosed to anyone beyond those processing his accommodation request which he had filed with the EEO Office not the Travel Office.
I(a) Claim 6 - Hostile Work Environment
To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his disability. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (June 18, 1999).
In Claim 6, Complainant alleges that the EEO Office created a hostile work environment by contacting S2 to ask about Complainant's performance and conduct. Even assuming the event at issue occurred as alleged by Complainant, he has not established that this single incident was sufficiently severe or pervasive to rise to the level of unlawful harassment.
Complaint I(b) and Complaint II - Discrimination on the Basis of Reprisal
A prima facie case of reprisal discrimination can be established by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) citing McDonnell Douglas. Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. 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. Kristy E. v. Dep't of the Interior, EEOC Appeal No. Appeal No. 0720120037 (Oct. 31, 2013) citing Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
I(b) Claims 1, 2, 5, and 6 - Delayed/Denied Reasonable Accommodations
Again, the AJ properly determined that Complainant failed to establish a prima facie case of reprisal because, among other things, he has not offered sufficient evidence that a nexus exists between the protected activity (actions related to Complaint I(a) and requests for reasonable accommodations) and the adverse treatment alleged in Claims 1, 2, 5 and 6 of Complaint I(b). Specifically, the AJ notes that reasonable accommodation process itself cannot constitute retaliation, and observes that for Claim 1, Complainant, not the Agency, "prolonged" the process for obtaining accommodations, when he would not provide the documentation necessary for processing his requests. The record reveals that Complainant refused to provide any additional documentation even though he was aware of the CFO Lead Accountant's and the EEO Specialist's requests. Complainant cites the requests, as well as aspects of the EEO interactive process, such as discussing the requested accommodation with Complainant's supervisor, as "interference, coercion, and intimidation," referenced in Claim 5.
Complainant argues that an inference of discrimination existed because S2 was aware that he named her as a responsible management official in two prior EEO Complainants, including Complainant I, which was still pending at the time of the alleged retaliatory action. However, Claims 1, 5 and 6 appear to argue, without evidence that S2 was responsible for the EEO Office processes and denials, and that S2 would not meet with him are not supported by evidence. We note that Complainant raises a question of unnecessary medical information requests. He established with CFO that he had a permanent disability, and therefore did not need to recertify that he was qualified for a special accommodation. Generally, a request for information in order to update his accommodation could be obtained through CFO, which was authorized to grant premium seating Unlike the EEO Office, accommodation requests submitted to CFO did not involve "engaging in the interactive process," and could be granted for employees that would not be covered under the Rehabilitation Act (e.g. an individual with a temporary injury).
In Claim 2, Complainant alleges that his CFO "travel accommodation" (referenced in the claim as a "permanent waiver") was revoked one day after the EEO Office issued his "Notice of Right to File a Formal Complaint." Ample evidence in the record indicates that more likely than not, any temporal proximity of receiving a document from the EEO Office and CFO was more likely due to Complainant's contacts with each office during the same time frame. Regardless, Complainant has not met his evidentiary burden to overcome the Agency's legitimate nondiscriminatory reasons for sending the forms.
I(b) Claim 4 - Admonishment
In Claim 4, Complainant alleges that he was "admonished" for routine conduct, which he describes as "raising performance deficiencies of administrative staff with their supervisor." Again Complainant fails to establish a prima facie case, as there is no nexus between the alleged discriminatory action and retaliatory motivation. Although Complainant alleges that S2 directed Complainant to issue the "admonishment" (non-disciplinary informal verbal counseling), the record supports that S1 agreed to take "appropriate action" after P3 and H1 requested that he do so in a meeting with both him and S1 and S2. Neither P3 nor H1 worked within Complainant's chain of command, and he does not dispute their testimony. Further, affidavits of the parties in the record indicate that the "admonishment" was for Complainant's statements made to S1 (as opposed to her supervisor) after the May 2, 2011 email.
S1 testifies that the "routine" incident in May 2011 was the only time he was aware of Complainant engaging in this activity. Further, Complainant does not provide additional examples of such "routine conduct" in the record. The accounts in the record do not convey a routine action, but rather, Complainant making statements that upset support staff and disrupted the office following the email. P1 was blindsided, as she believed Complainant was approaching her to "apologize" for the May 2, 2011 email, only to criticize her work within earshot of coworkers and indicate that he and S1 intended to have P2 fired for poor performance. P3 notes in her affidavit that P1 was especially upset over the public nature of these statements. P3 also found them very inappropriate because they were false, as P2 had her "full confidence" and Complainant was making statements he would not be privy to.
Notwithstanding the tone of Complainant's May 2, 2011 email, Complainant's subsequent comments to P1 appear to have caused the "admonishment." The "admonishment" itself was informal verbal counseling and did not include disciplinary action. A fair reading of the record supports the "admonishment" was not for the "routine conduct" Complainant alleged, but for making false statements about support staff within earshot of coworkers.
Complaint II - Lowered Performance Appraisal Score
In Complaint II, Complainant establishes a prima facie case for reprisal, but fails to overcome the Agency's legitimate nondiscriminatory reason its actions. Namely, S2, as Complainant's senior rating official, acted within the scope of her authority when she decided not to adopt S1's recommended PA overall score of "Outstanding" because she believed Complainant's "problematic interactions with his coworkers" warranted a lower score. S1 did not agree, but states in the record that when he and S2 discussed Complainant's score, her references to his conduct and "attitude" referred to complaints raised by support staff and the May 2, 2011 email and subsequent comments to P1, not Complainant's EEO activities.
Complainant argues on appeal that a hearing is warranted because a question of fact remains as to whether S2's proffered rationale for lowering his score, was pretext for reprisal. He alleges that the AJ's dismissal was essentially based on an improper credibility determination favoring S2 over S1's testimony in the record. Complainant's argument that S1's "Outstanding" rating should not have been overturned by S2 because S1, as his direct supervisor, was more knowledgeable about his performance, fails to address S2's legitimate nondiscriminatory reason for awarding a lower overall rating. Rather, Complainant appears to argue that S2 only identified "attitude" as her reason for lowering his score because she cannot dispute his "Outstanding" caliber work performance.
We find the record has been sufficiently developed so that a credibility finding for S2 is not necessary. Multiple other sources, including S1, indicate that Complainant's conduct negatively impacted the work environment throughout the 2011 rating period. We note that the informal counseling session with S1 about the May 15, 2011 incident did not resolve the "attitude" issue. For instance, S1 testifies that in April or May 2011, he "dropped" Complainant from the team rotation as Acting Director of GIPA, a role Complainant regularly served, because support staff complained about Complainant's "demeaning behavior." H1 recounts that in July 2011, an investigation was conducted regarding Complainant's conduct toward female employees. Emails from support staff included in the record, as well as affidavits from P1, P2 and P3 all indicate that Complainant's attitude made him difficult to work with.
Additionally, there is sufficient evidence in the record to support "attitude" as a legitimate nondiscriminatory reason for lowering a PA score. In relevant part, the Agency's "Generic Performance Standards" provide that interpersonal skills, such as how an employee handles interpersonal relationships, and whether he or she "promotes cooperation," are to be considered when determining whether an employee meets the "Outstanding" standard for a PA. In addition, the Agency's Human Resources training on how to evaluate an employee for a PA, advises supervisors that it is appropriate to take an employee's "attitude" and "professional demeanor" into consideration if the "conduct issue" becomes a "performance issue." For instance, if an employee's conduct disrupts the productivity or cohesiveness of the team, it may be considered a performance issue. We note that on appeal, Complainant does not dispute the accounts by H1, P1, P3 and S2, describing the distress his conduct caused among Support Staff, particularly P2, who believed she would lose her job based on his comments on or around May 15, 2011. Even if S1 did not believe Complainant's attitude warranted a lower PA score, S2's decision to change his PA score on that basis is sufficiently supported in the record.
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 decision to adopt the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 31, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant clarified that this claim refers to requests made by two different offices, the CFO Travel Office in March 2011, and the EEO Office in both March and April 2011.
3 Complainant dropped this claim and it will not be addressed herein.
4 Agency Case No.115680, filed September 9, 2011, was addressed in EEOC Appeal No. 0120120514 (Apr. 9, 2013) (affirming the Agency's dismissal of Complainant's allegation that the Agency's reasonable accommodation policy for air travel violated the Rehabilitation Act, reasoning that Complainant failed to state a claim because he did not allege a personal loss or harm regarding a term, condition, or privilege of employment.)
5 When Complainant initially requested an accommodation in 2009, this office was known as the Office for Civil Rights ("OCR").
6 This decision is not determinative of whether Complainant is an "individual with a disability" under the Rehabilitation Act, as the AJ expressly declined to make a determination on the matter, stating "This decision will not provide a determination of disability. For purposes of this analysis, we will assume Complainant meets the requisite."
7 GSA Bulletin FTR 10-05 (June 9, 2010), available at http://www.gsa.gov/federaltravelregulation; see also FTR Amendment No. 2009-06 (74 FR 55145) (Nov. 27, 2009) Part 300-70 Agency Reporting Requirements ("Where can we find what information we are required to report? GSA will issue a Bulletin which will inform agencies of the required information and reporting format(s) for any trip in which the agency authorized and paid for transportation that exceeded the use of coach-class or lowest first-class accommodations. Negative submissions are required"); FTR Amendment No. 2010-07 November 29, 2010 Chapter 301 "Temporary Duty (TDY) Travel Allowances, Part 301-10 Transportation Expenses."
8 We note that Complainant alleges some of his medical information was on the Travel Mailbox in 2009, two years before the events at issue. Even if true, this claim is untimely raised.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120152261