0120131804
07-01-2016
Johana S.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Johana S.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120131804
Hearing No. 550-2011-00069X
Agency No. FS-2009-01382
DECISION
Complainant timely filed an appeal from the Agency's 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 MODIFIES the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether there are genuine issues of material fact that require a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ); (2) whether the AJ properly found that the Complainant did not establish that she is a "qualified individual with a disability"; (3) whether Complainant's supervisor's statements amounted to direct evidence of disability discrimination; and (4) whether Complainant established that she was subjected to a hostile work environment as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a full-time Criminal Investigator, GS-12, with the Agency's Forest Service, Region 5 Law Enforcement and Investigations, at the Stanislaus National Forest in Sonora, California. Report of Investigation (ROI), at 19. Complainant's duties involved working with local law enforcement in order to conduct drug operations/investigations dealing with illegal marijuana sites/gardens. Complainant was promoted into her Criminal Investigator Position on October 14, 2007. Id. at 48. The vacancy announcement reportedly noted that the promotion required the completion of the Criminal Investigator Training Program at the Federal Law Enforcement Training Center (FLETC). Id. The Position Description (PD) described the duties of Complainant's Criminal Investigator Position as planning and directing "surveillance work that involves several investigations in separate places engaged in round the clock observation of various suspects, all of whom are thought to be involved in related illegal activities." Id. at 125. As a result, the position also required physical demands involving "frequent and recurring surveillance in which there is a considerable amount of walking, stooping, bending and climbing . . . ." Id at 128.
Complainant's duties, however, were separated into two functions: the investigation stage and the eradication stage. Complainant's April 22, 2011, Deposition Transcript (Dep. Trans.), at 11-33. During the investigation stage, Complainant would coordinate with other agencies to write operation plans in preparation for the eradication stage. This required computer work and telephone calls to contact local law enforcement for participation in the eradication stage. Id. at 14. Once the investigation stage was complete, the eradication phase would commence, requiring on-site inspections of illegal marijuana gardens with teams of local law enforcement. According to Complainant, the onsite inspections of the marijuana gardens would occur sporadically, possible happening once a month or once a week. Id. at 12.]
Prior to her promotion, on August 6, 2007, Complainant suffered an on-the-job injury to her lower back. ROI, at 64. However, the severity of Complainant's injury was not diagnosed until January 2008. Id. According to Complainant, her back injury required major surgery, but she was expected to make a full recovery. Id. at 63. Complainant indicated that while she was recovering, she was temporarily unable to perform moderate to arduous physical activities, and was unable to stand for extended periods of time greater than 10 to 15 minutes or to walk long distances. Id. at 64. Complainant indicated that her first-level supervisor (S1) became aware of her medical condition on or about February 11, 2008.
On August 9, 2009, S1 received a verbal complaint from the Tuolumne County Sheriff's Office about Complainant's handling of a marijuana site operation/investigation that occurred on July 31, 2009. Id. at 76. The Sheriff's Office complained that Complainant had attempted to run the operations from the helicopter landing zone (LZ) and had not actually gone into the marijuana gardens with the teams, which members of the team felt was a safety concern. Id. Complainant averred that she was unable to walk into the marijuana gardens due to her back injury. Complainant's Dep. Trans., at 11-12. S1 stated that operations like the one on July 31, 2009, require the ability to "crawl on your belly to get from one marijuana site to the other ... there is no way that the person in a helicopter can see and direct what's going on unless they're down on the ground." S1's Feb. 17, 2011, Dep. Trans., at 77. S1 averred that this can be a safety issue for teams on the ground because sometimes multiple suspects have guns or take off running through the forest vegetation. Id. S1 further averred that Complainant worked with several other counties and would also usually stay in the helicopter or in the LZ rather than being on the ground with team members. Id. at 91.
Complainant disagreed with S1, stating that her actions simply reflected standard operating procedure that someone go up in the helicopter before the eradication. Complainant specifically averred:
[I]t is normal operating procedure for at least one person to go up with the pilot and preview the garden to make sure it's still there ... provide extra eyes if the team is making entry .... I was in the helicopter. I had assigned one of our officers to be our lead on the ground, because obviously, I wasn't on the ground.
Complainant's Dep. Trans., at 32.
Complainant averred that the Agency knew she was injured and allowed her to conduct operations this way on other occasions, receiving no complaints. S1's February 17, 2011, Dep., at 90. Complainant indicated that she was able to perform all the duties of her position "except actually walking into marijuana gardens on the eradication date." Complainant's Dep. Trans., at 11.
Complainant's previous supervisor had accommodated her back injury, granting her request of not walking through the marijuana gardens during eradication. Id. 11-12. This request was apparently granted because Complainant's previous supervisor had been aware that she injured her back on an on-site marijuana garden eradication. Id.
S1 subsequently issued Complainant a memorandum on August 27, 2009, requesting medical documentation. ROI, at 129. Therein, S1 expressed concern over Complainant's physical inability to attend the FLETC mandatory training along with her inability to meet the physical demands of her Criminal Investigator position. Id. S1 specifically requested that Complainant visit her doctor and provide him the diagnosis, history, and prognosis of her medical condition as it related to her ability to perform the duties of her position as outlined in the PD. Id.
On September 10, 2009, Complainant provided the requested medical documentation to S1. Id. at 131. Therein, Complainant's doctor reportedly indicated that Complainant is "'able to perform 90+% of [her] job duties with the exception of a 33-40 pound weight limit.'" Id. Complainant's doctor also apparently indicated that she hoped Complainant would not have to attend the FLETC training. Id.2
On September 23, 2009, Complainant learned from a coworker that Tuolumne County was planning to conduct a marijuana raid the following day, on September 24, 2009. Id. at 21. Complainant discovered that S1 had asked a coworker, a patrol supervisor, to write the operation plan instead of her. Id. According to Complainant, when she complained about not being involved in the operations plan as she normally would, S1 responded that the Tuolumne County Sheriff's department did not want to work with her, and said he thought "it's best to keep [her] out of the mix with Tuolumne County until we can work this out." Id. at 67. Complainant felt that S1 wrongly took away her duties with Tuolumne County, which jeopardized her professional reputation. Id. at 68.
Subsequently, on October 16, 2009, S1 issued Complainant a memorandum titled, "Letter of Instruction - Temporary Assignment to Administrative Duties." Id. at 131-32. Therein, S1 stated that he decided to assign Complainant to administrative duties on a temporary basis because of her medical condition, due in part to her inability to attend the FLETC mandatory training. Id. S1 further wrote, "A decision will be made as to your ability to retain your position as criminal investigator due to your inability to meet the condition of employment described above." Id.
On November 3, 2009, Complainant was issued her performance appraisal for October 1, 2008, through September 30, 2009 (Fiscal Year (FY) 2009), receiving a "Fully Successful" rating, which resulted in a lower cash award for her. Complainant had received the higher "Superior" rating on her appraisal for the previous year, in FY 2008, which she felt she again deserved for FY 2009. S1's Feb. 17, 2011, Dep. Trans., at 96. On November 6, 2009, Complainant reportedly sent S1 an e-mail, reminding him that he said her performance appraisal would be the same as last year, but it was not. Id. at 98-99. According to Complainant, S1 replied via e-mail on November 8, 2009, writing, "Due to your limitations at this time I feel that Fully Successful is fair ...." Id. at 99.
Upon being asked about the November 8, 2009, e-mail, S1 averred:
I don't have that e-mail. But if I said that, it had no difference whether she was hurt or not hurt. It just depended on what her performance was.
Id.
Complainant could not understand why she received the lower rating, especially because on May 21, 2009, S1 communicated to her that her performance was excellent and to keep up the good work. However, S1 averred that he took into account the "[c]omplexity and number of cases and her participation in operations ..." in scoring Complainant as Fully Successful. ROI, at 91. S1 further averred that her "[f]ull participation in all operations" would have resulted in a higher rating. Id. S1 elaborated:
But full participation means being if you have an operation that you are out there and you are fully involved, what I expect of my agents is that they are going to lead these people in to the site or to the search warrant or do whatever is needed to be done. But that you're going to be there and that person is going to be there to direct, participate, and be involved in whatever operation is going on.
S1's Dep. Trans., at 104.
Out of twelve employees rated for the FY 2009 period, eight received Superior ratings, while Complainant and two others received Fully Successful ratings, with one receiving a Marginal rating. ROI, at 14. A month after receiving her Fully Successful rating, Complainant underwent surgery in December 2009. Id. at 90.
On February 3, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of sex (female), disability (back injury), and reprisal (unspecified) for prior protected EEO activity when:
1. on August 27, 2009, she was threatened with removal from her position because of her back injury and inability to attend mandatory training;3
2. on September 23, 2009, she learned that S1 had assigned a co-worker to write an operation plan for a marijuana raid on September 24, 2009; and
3. on November 3, 2009, she received a "Fully Successful" performance appraisal rating, resulting in a lower cash award.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
On January 19, 2012, the AJ assigned to the case, sua sponte, issued a notice of intent to issue a summary judgment decision, pursuant to 29 C.F.R. � 1614.109(g)(3). On February 8, 2012, the Agency filed a motion for a decision without a hearing. Complainant filed a brief in opposition to the notice of intent to issue a decision without a hearing. On March 9, 2012, the AJ issued a decision without a hearing on March 9, 2012, in the Agency's favor.
The AJ found that, although Complainant had a disability, she was not "qualified" for the Criminal Investigator position because she could not perform the essential functions of the position with or without accommodation. The AJ further found that the Agency allowed Complainant to work administrative duties commensurate with her position as a Criminal Investigator, and therefore met its obligations under the Rehabilitation Act. The AJ additionally indicated that Complainant conceded that she did not have EEO activity prior to the instant complaint, and therefore she did not establish a prima facie of discrimination based on retaliation. The AJ further found that Complainant did not establish she was subjected to discrimination based on sex. The AJ found that the Tuolumne County complaint that Complainant was not performing her full range of duties and her continued failure to attend the FLETC training lead to the Agency's actions. The AJ indicated that Complainant failed to proffer any evidence that males were treated more favorably than she was. The AJ additionally noted that Complainant did not proffer evidence that male employees who could not perform the full range of their duties received better than a Fully Successful rating on their performance appraisals. In sum, the AJ found that Complainant failed to establish that she was subjected to disparate treatment and harassment based on her protected bases. The Agency subsequently issued a final order adopting the AJ's finding that Complainant had not established that it subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argues that her case should be remanded for a hearing to resolve the many factual disputes in the record. Complainant asserts that the AJ improperly conducted a "trial by affidavit" in granting the Agency's motion for a decision without a hearing. Complainant argues that the credibility of management officials herein must be assessed through live witness testimony at a hearing. Complainant further argues that the AJ wrongly found that she failed to establish prima facie cases of discrimination based on her protected bases. The Agency did not file a brief on appeal.
STANDARD OF REVIEW
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 Chap. 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").
ANALYSIS AND FINDINGS
Decision without a Hearing
We first must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Defense, 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).
As discussed further below, we find that the issuance of a decision without a hearing was appropriate, given the uncontested evidence of record. However, we find that the AJ erred in finding in favor of the Agency rather than Complainant with regard to claims 2 and 3.
Individual with a Disability
To bring a claim of disability discrimination, Complainant must first establish that she is an "individual with a disability" within the meaning of the Rehabilitation Act. An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such impairment, 29 C.F.R. 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. 1630.2(i). Examples of other major life activities include thinking, concentrating, interacting with others, and sleeping.
Upon review, we find that while Complainant averred that her injury affected her ability to stand and walk for extended periods of time, she has not submitted medical documentation for the record to that effect. Consequently, other than Complainant's unsupported assertions, we can find no evidence which would establish that Complainant has a physical or mental impairment that substantially limits one or more major life activities. Nevertheless, we find that the Agency "regarded" Complainant as having an impairment that substantially limits a major life activity. As a result, we find that Complainant therefore meets the definition of an individual with a disability under the Rehabilitation Act. We note that the Supreme Court has analyzed the "regarded as" definition of an individual with a disability, and found that, although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling. School Board of Nassau County v. Arline, 480 U.S. 273 (1987). The Court noted that an "impairment might not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person's ability to work as a result of the negative reactions of others to the impairment." Id. 283. The Court stated that by including "regarded as" in the Rehabilitation Act's definition, "Congress acknowledged that society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment." Id. at 284.
Here, the record reflects that management had been accommodating Complainant before the Tuolumne County Sheriff's Office verbal complaint about her inability to leave the helicopter LZ. Specifically, the record reflects that S1 and Complainant's previous supervisor had been allowing Complainant, on many operations, to remain in the helicopter during the eradication stage due to her back injury. Further, S1 requested medical documentation from Complainant's doctor due to her limited ability to walk and stand, thereafter assigning her to administrative duties completely away from the eradication stage. In addition, we note that S1 admitted that Complainant was not given a higher performance rating because she could not fully participate in operations due to her physical limitations.
We find that when the Agency accommodated her injury, requested medical documentation, assigned her to administrative duties, and lowered her performance rating due to her injury, it treated her as if she were substantially limited in the major life activities of walking and standing. As a result, we find that the Agency regarded Complainant as having an impairment that substantially limits a major life activity. We therefore find that Complainant meets the definition of an individual with a disability under the Rehabilitation Act. See Riley G. v. Dep't of Homeland Sec., EEOC Appeal No. 0120112139 (Nov. 20, 2015) (finding the agency regarded complainant as having a physical impairment that substantially limited a major life activity when it did not select complainant due to medical documentation); Sainz v. Dep't of the Treasury, EEOC Appeal No. 0720030103 (Sept. 19, 2008) (finding the agency regarded complainant as having a physical impairment that substantially limited the major life activities of lifting, standing and walking); See McManaway v. U.S. Postal Serv., EEOC Appeal No. 01993233 (Aug. 23, 2002) (complainant was regarded as having an impairment which substantially limited his ability to work in a broad range of jobs in various classes requiring heavy lifting, continuous standing, pushing, pulling, bending and reaching); Mateo-Ortiz v. U.S. Postal Serv., EEOC Appeal No. 01992867 (Nov. 13, 2000) (complainant was regarded as substantially limited in the ability to work based on the agency's perception that complainant could not perform any strenuous activity; Boone v. U.S. Postal Serv., EEOC Appeal No. 01971754 (Mar. 22, 1999) (agency regarded complainant as substantially limited in the ability to work when it believed that complainant must be limited from engaging in heavy lifting and carrying, because his orthopedic problems in his back and extremities put him at a high risk of injury if he engaged in those activities).
Qualified Individual
To be entitled to protection under the Rehabilitation Act, Complainant must also show that she was a "qualified individual with a disability." 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 who, with or without reasonable accommodation, can perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
Here, we find that the AJ erred in finding that Complainant is not a qualified individual with a disability. Specifically, the record reflects that the Agency had been accommodating Complainant, allowing her to remain in the helicopter during the eradication stage of operations. During the time the Agency allowed Complainant to conduct operations from the helicopter, it issued her a "Superior" rating on her appraisal for FY2008 and a "Fully Successful" rating for FY2009. This reflects that Complainant was able to perform the essential functions of her position with accommodation. We note that a majority of Complainant's duties required desk work, as on-site marijuana garden eradication operations were not a daily occurrence. Rather, as Complainant averred, they only occurred at the most once a week and sometimes only once a month. The rest of the time, Complainant was at her desk doing computer work and making phone calls, constructing an operations plan for the eradication stage. There is no evidence in the record that would reflect that the person constructing the operations plan needed to be walking in the marijuana gardens during the eradication stage. In addition, as of the date of her April 22, 2011, deposition she was still employed in the same position, and her doctor apparently cleared her for the FLETC training. Complainant's Dep. Trans., at 29-30. As such, we find that Complainant has established that she is a qualified individual with a disability within the meaning of the Rehabilitation Act.
Direct Evidence (Claims 2 and 3)
We find that Complainant raises allegations that amount to direct evidence of disability discrimination which the AJ failed to address in his decision. Direct evidence of a discriminatory motive may be any written or verbal policy or statement made by a respondent or respondent official that on its face demonstrates a bias against a protected group or is linked to the complained of adverse action. See Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, III(A) (July 14, 1992) (as amended Jan. 16, 2009) (Revised Enforcement Guidance). A link between the evidence of bias and the challenged employment action can be shown if the biased statements were made by the decision-maker or one who was involved in the decision, at or around the time of the decision was made, even if the biased remarks were not specifically related to the particular employment decision at issue. See id., fn. 8. The Supreme Court has held that where the Complainant presents direct evidence of discrimination, use of the McDonnell Douglas test is inappropriate. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Trans World Air Lines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Unless the agency can impeach the evidence or can establish an affirmative defense, liability will be established. Revised Enforcement Guidance, at III(B)(1).
Here, we find that S1's admission that another coworker was directed to write the operations plan for the September 24, 2009, operation and that the Sheriff's office had made a verbal complaint about Complainant's injury to be direct evidence of discrimination with regard to claim 2. S1's Dep. Trans., at 91-92. S1's admission reflects that he was motivated by Complainant's injury when he removed her duties with respect to the operations plan. There is no evidence in the record that would reflect that the person constructing the operations plan needed to be walking in the marijuana gardens during the eradication stage. Rather, the Agency, on prior occasions, had given Complainant the responsibly of the operations plan, even though she could not walk through the illegal marijuana gardens. S1 clearly took away Complainant's responsibilities with respect to the operations plan due to her back injury, which he regarded as a disability.
In addition, we find that S1's admission that he did not give Complainant the higher performance rating because she did not fully participate in operations to be direct evidence of disability discrimination. We note that S1 admitted that Complainant could not fully participate in marijuana drug site operations due to her back injury, which he regarded as a disability. S1's Dep. at 35. We note that most GS-12 Criminal Investigators received the Superior rating for FY2009 and Complainant had received the higher rating previously for FY2008. We find that the Agency has presented no evidence that Complainant had performance issues, not related to her disability, which reflected that she was undeserving of the higher rating. See Lowe v. Dep't of Air Force, EEOC Appeal No. 01964297 (Aug. 12, 1998) (direct evidence of disability disparate treatment existed where agency admitted that complainant's performance appraisal was lowered because he was individual with disability); Strawn v. General Services Admin., EEOC Appeal No. 01943187 (June 20, 1996) (statement by rating official that he lowered complainant's rating because of absences, where absences were related to disability, constituted direct evidence of disability discrimination); Riley G. v. Dep't of Homeland Sec., EEOC Appeal No. 0120112139 (Nov. 20, 2015) (direct evidence found after the agency regarded complainant as an individual with a disability).4
Hostile Work Environment (Claims 1, 2, and 3)
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII [and 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. Harris v. Forklift Systems, 510 U.S. 17 (1993). We note that, with regard to claim 1, Complainant specifically claimed that the language in S1's August 27, 2009, memorandum, requesting medical documentation, improperly indicated that she could be removed from her position because of her back injury and her inability to attend the FLETC mandatory training.5 Notwithstanding, we find that Complainant did not show that S1's language in the memorandum requesting medical documentation rose to the level of a hostile work environment. We note that Complainant was never disciplined or issued a notice of removal, and as of the date of her April 22, 2011, deposition she was still employed in the same position. Although we find that the Agency subjected Complainant to discrimination with respect to claims 2 and 3, we find that Complainant has not established that the Agency's actions here were sufficiently severe and pervasive enough to rise to the level of 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 find that this case presented no genuine issues of material fact that required a hearing; the AJ erred in finding that Complainant did not establish she is a qualified individual with a disability; Complainant's supervisor's statements amounted to direct evidence of disability discrimination with respect to claims 2 and 3; and Complainant failed to establish that she was subjected to a hostile work environment as alleged with respect to claims 1, 2, and 3. Accordingly, we MODIFY the Agency's final order.
ORDER
The Agency is ORDERED to take the following remedial actions within one hundred twenty (120) days of the date tis decision becomes final:
1. Complainant's "Fully Successful" Performance Appraisal Report for FY 2009 shall be changed to the "Superior" level of performance.
2. Complainant shall also receive any performance award or other benefits associated with the Superior performance appraisal.
3. The Agency shall expunge from Complainant's Official Personnel File (OPF) all documentation referring to her FY 2009 "Fully Successful" performance rating.
4. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F R. � 1614.110.
5. The Agency shall provide training to the Supervisor identified as S1 regarding the Rehabilitation Act. The Commission does not consider training to be disciplinary in nature.
6. The Agency shall consider taking disciplinary action against S1. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
7. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Region 5 Law Enforcement and Investigations office copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency --not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
July 1, 2016
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 The record does not contain the medical documentation that Complainant provided to S1 on September 10, 2009.
3 With regard to claim 1, Complainant specifically claimed that S1's August 27, 2009, memorandum requesting medical documentation improperly indicated that she could be removed from her position because of her back injury and her inability to attend the FLETC mandatory training. EEO Counselor's Report, at 3.
4 Having found that the Agency discriminated against Complainant on the basis of disability, we need not reach the question of whether the Agency discriminated on the basis of sex and/or reprisal with regard to claims 2 and 3; a finding in her favor on those claims would result in no greater remedy.
5 We find that claim 1 is more properly analyzed under a harassment/hostile work environment theory rather than under a disparate treatment theory.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120131804
2
0120131804