Kathie N.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Sep 17, 2020

2019001387 (E.E.O.C. Sep. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathie N.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2019001387 Hearing No. 460-2016-00150X Agency No. BOP-2015-01947 DECISION On February 27, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 15, 2018 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked as a Case Manager (CM) at the Agency’s Federal Correctional Complex in Beaumont, Texas. On September 23, 2015, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her based on disability (arthritis) when: 1. From December 2014 to September 2015, management ignored her request for reasonable accommodation; her medical documents were reviewed in an open meeting with all supervisors; her temporary job modification status was placed on 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. 2019001387 2 the augmentation roster; she was threatened with displacements, having her work location moved and being placed on sick leave; she did not receive performance- based awards; her evaluations were not rated “Outstanding;” she was not selected for Operational Review teams; she was subjected to a Fitness for Duty examination which went beyond examining only her right hip; 2. On October 1, 2015 her request for reasonable accommodation was unlawfully denied when she was told that her doctor’s letters were conflicting and could not be used to determine her eligibility for an accommodation; and 3. On October 21, 2015, she learned that a Union representative was inappropriately involved in her request for a reasonable accommodation. Complainant further alleges that her doctor’s letters in total, were not reviewed and explained in the consideration of accommodations for workers with a disability. The Agency’s investigation into the complaint reflects that Complainant began working for the Agency in 2008. Beginning in August 2014, Complainant was supervised by a Unit Manager (UM). The record further indicates that prior to August 2014, another employee supervised Complainant, (Supervisor). Complainant further identifies the Agency’s Warden, Associate Warden (AW), the Human Resources Manager (HRM) and the Associate Human Resources Manager (AHRM) as responsible management officials in the instant matter. Complainant indicates that since 2011, she has suffered from osteoarthritis, which is a permanent condition causing pain and “problems with movement.” Complainant indicates that the osteoarthritis became progressively worse until she underwent hip surgery on February 17, 2015. Complainant stated that before surgery “walking any great distance, squatting, [and] bending [was] very painful.” Complainant further indicates that after standing, she had to rest for several minutes before continuing, that rolling over in bed was difficult, sleeping was painful, and weather changes were “extraordinarily painful.” Following surgery, however, Complainant states that her pain was “greatly improved.” However, weather changes, walking considerable distances and sitting for extended periods still caused her great pain or discomfort, Complainant indicated that her primary concern has been pain avoidance. Complainant further indicated that the surgery greatly improved her mobility difficulties. Complainant stated that the essential functions of her position as Case Manager involved office work, responding to emergencies, and periodically being “augmented to a correctional post” to cover a post left vacant due to staff shortages. Complainant stated that none of her CM duties were painful. Complainant stated, however, that the most physically demanding correctional posts caused her significant pain. As an example, Complainant indicated that one post required that she walk up and down stairs multiple times a day. Complainant acknowledges that she was able to climb stairs. However, Complainant stated that doing so multiple times a day was painful and caused long-lasting leg spasms. Complainant nevertheless maintained that she could perform the essential functions of her position, including correctional duties. 2019001387 3 In addition, Complainant indicated that while she had no “restrictions” associated with osteoarthritis, she did have “limitations.” The record indicates that in late 2013, Complainant provided Supervisor with a note from her doctor stating that the arthritic condition in Complainant’s right hip “gave her some limitations with activities,” as she was unable to squat, kneel, work on hands and knees, climb, or walk for more than an hour. Complainant’s doctor further stated, “otherwise, [Complainant] functions well and should be able to continue functioning well with her office job for some time to come.” Complainant described the limitations listed in her doctor’s note as activities that were difficult for her to do given the pain they caused as opposed to activities that her condition prevented her from performing. Based on the doctor’s note Complainant provided the Agency, she indicates that her direct supervisors accommodated her from 2013 through most of 2014 by not assigning her to the more physically demanded posts. Complainant stated, however, that sometime in 2014, her supervisors no longer had discretion in which posts to which Complainant could be assigned. Complainant alleges that an Agency official advised her in December 2014 that she should not be working inside the Agency’s facility with the type of doctor’s note she provided her supervisors. Thereafter, Complainant was placed on a Temporary Job Modification (TJM), against her wishes, despite previously having made several requests for accommodation. According to Complainant, the TJM allowed her to work under limitations that she not squat, run, jump or walk for longer than 30 minutes. In January 2015, Complainant’s 2013 doctor’s note was forwarded to the Human Resources Manager for review. During the period of Complainant’s TJM, she alleges that the initials “TJM” were placed next to her name on the roster of assignments. Complainant alleges that as a result of the TJM designation, staff was on notice that she had a medical issue which also portrayed her in a bad light. Complainant contends that staff on light duty were looked at unfavorably. The record indicates that an assignment roster dated February 2, 2015 contained 19 names, 10 of which had “TAD”, “TJM”, “LWOP”, or “OWCP” listed next to their names. Complainant further contends that before Agency officials learned of her “injury,” she regularly received performance awards, received an “Outstanding” rating on her performance evaluation, was chosen for the Operational Review Team for several years, and served as an Acting UM on an “almost continuous basis.” Complainant alleges that once her medical condition was made known, she was rated “exceed” on her performance evaluation, and she had not been chosen for the Operational Review Team in 2015. In an email exchange on February 4, 2015, between Complainant and the HRM, Complainant stated that she had requested a reasonable accommodation, and that her supervisors had accommodated her by taking her “handicapping” conditions into account when assigning her to work posts. According to Complainant, when the stairs in a housing unit became too difficult for her, she and her supervisor “agreed” that she could “work compound.” Moreover, Complainant continued, when working as a compound officer became too difficult, her supervisor was able to assign her to a housing unit with a working elevator or to a mobile unit. In the February 4, 2015 email, Complainant requested an “augmented position” with “physical demands most like an office job.” 2019001387 4 Complainant further noted that she had recently been diagnosed with arthritis in both hips and that she was scheduled for hip replacement surgery on February 17, 2015. Complainant advised further that as a result of her upcoming hip surgery, she was requesting a reasonable accommodation. In response, the Agency’s HRM advised Complainant that he could not approve a TJM without first reviewing her medical documentation. He further advised Complainant that he would be “more than happy to review [her] current medical documentation and see if [the Agency could] accommodate [her] request. Complainant argued that the Agency’s request for medical documentation in considering her request for reasonable accommodation constituted harassment. Specifically, Complainant emphasized that her supervisors had previously accommodated her by assigning her to posts which she could perform. However, Complainant continued, the current roster did not provide her supervisor any discretion in assigning her to particular posts. Following hip surgery on February 17, 2015, Complainant was away from work for five weeks while she recovered. The record indicates that while Complainant was away from her position, supervisors from various Agency divisions met to review the medical documentation of each employee on “light duty.” According to Complainant, beginning in May 2015, she began having to provide medical updates for review by Agency officials regarding her condition and recovery at monthly meetings. Complainant alleged that Agency officials harassed her monthly about medical updates and refused to accept her doctor’s notes advising her that they did not adequately describe Complainant’s condition. The record contains a copy of Complainant’s official request for reasonable accommodation dated June 24, 2015. Therein, Complainant requested “a continuation of [her] previous accommodations,” referring to the “open communication” she had with her supervisor regarding augmentation assignments. Complainant requested that she be “exempt from working the most physically demanding correctional posts” and that she be exempt from working posts that require her to “respond to an emergency” while wearing an equipment vest. Complainant also provided the Agency with a list of augmentation posts she could work, noting that she had recently undergone a hip replacement. Complainant requested “continued accommodations” through her recovery the majority of which would occur within six months with full recovery taking up to a year. Upon receipt of Complainant’s accommodation request, the Agency advised Complainant to provide a note from her doctor determining her fitness for duty. Complainant provided the Agency with a letter from her physician dated July 14, 2015 indicating that she was fit for duty. However, Complainant’s physician also stated that he “agreed” with Complainant that she should “avoid the most physically demanding posts” and any post that ‘would require [her] to run with the emergency vest.” Complainant’s physician made recommendations regarding specific augmented posts to which she should be assigned. On July 15, 2015, Complainant received a letter from the Agency placing her on administrative leave. The Agency determined that Complainant had been physically/medically unable to perform the duties of her position and that she had been provided a TJM since January 26, 2015. Complainant was further advised that because she had not produced updated medical documentation that she was fit for duty, the Agency was unable to decide what temporary job modification it could offer. 2019001387 5 On August 13, 2015, Complainant provided the Agency with another doctor’s note. Therein her physician again indicated that she “had no restrictions” but that she “should avoid the most physically demanding tasks while recovering from surgery.” On August 14, 2015, the Agency ordered Complainant to submit to a fitness for duty examination performed by a physician hired by the Agency. According to Complainant, at the fitness for duty examination conducted on August 17, 2015, in reprisal for her having requested a reasonable accommodation, she was required to submit to irrelevant examinations such as a hearing test. Complainant was determined to be fit for duty without restriction and she was permitted to return to full duty on August 27, 2015 based on the conclusions of the Agency physician. Complainant further alleged that a Union representative was inappropriately involved in her accommodation request. Specifically, Complainant contends that the Union representative advised Agency officials that because she alleged that she was fit for duty but should avoid certain posts, Complainant could be a risk to the Agency if she were to get injured. Finally, Complainant contends that while it has denied her request for reasonable accommodation, over the past year, the Agency has accommodated several other individuals by allowing them to avoid working a correctional or augmented post. Following an 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, but subsequently withdrew her request. The Agency therefore issued a final decision based on the evidence developed during the investigation, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. This appeal followed. 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 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”). 2019001387 6 ANALYSIS AND FINDINGS Reasonable Accommodation An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). “The term “qualified,” with respect to an individual with a disability, means that the individual 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). Upon a complainant's request for reasonable accommodation, an employer may require that documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. See RA Guidance at Question 6. When an employee's disability or need for an accommodation is not known or obvious, an employer may ask an employee for reasonable documentation about his or her disability, limitations, and accommodation requirements. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, Question 7 (July 27, 2000). Assuming arguendo and without finding that Complainant was a qualified individual with a disability, we find that the Agency has not denied her a reasonable accommodation when she was placed on administrative leave following her hip replacement surgery in February 2015. Specifically, beginning in May 2015, the Agency sought to obtain the status of Complainant’s medical condition, her incapacitation to work, or the impact her medical condition had on her ability to return to work. The record indicates that Complainant repeatedly provided the Agency with medical documentation that was contradictory and which did not indicate the specific limitations if any on Complainant’s ability to perform the essential functions of her job. The Agency was unable to determine the accommodation Complainant would need in order to perform her job, as more fully delineated below. Complainant was diagnosed with osteoarthritis. In November 2013, her physician indicated that she had “no restrictions” associated with her condition but that she had “limitations.” Complainant’s physician further indicated that the arthritic condition in Complainant’s hip limited her in some activities including squatting, kneeling, climbing or walking for more than an hour. However, he further indicated that “otherwise [Complainant] functioned well” and would do so for “some time to come.” Following Complainant’s hip surgery in February 2015, her treating physician noted in July 2015 that Complainant was fit for duty but that she “should avoid the most physically demanding posts” or “posts that would require her to run in response to an emergency wearing an equipment vest. In an August 2015 note, her physician again described Complainant as having no restrictions but advised that she should avoid physically demanding tasks. 2019001387 7 The reports of Complainant’s physicians in this matter have not clearly illuminated Complainant’s ability to perform. Complainant’s physicians simultaneous indicate that she has no limitations in performing her duties but that she should also refrain from performing certain duties of her position without specifically naming her physical restrictions with respect to those duties. Given the ambiguity in the physician reports, we determine that the Agency made good faith efforts to resolve the ambiguities, and do not find that it had denied Complainant a reasonable accommodation in this particular case. Harassment To establish a claim of harassment complainant must show that: (1) she is a member of the statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002 (March 8, 1994). Further, the incidents must have been “sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). We have reviewed the panoply of harassment claims raised by Complainant in the instant complaint. As a threshold matter, we acknowledge that the Agency has not expressly delineated with specificity the justification for its actions in every claim, other than to assert that the actions it took were not motivated by discriminatory animus. We will address individual claims as follows. The record reflects that Agency officials denied being aware of Complainant being threatened with either job displacement of with work being changed. Regarding moving of work locations, the Agency noted that given the ambiguity of medical documentation provided by Complainant, the Agency found it reasonable to place her in the Administration Building, away from inmates, until more information on medical restrictions became available. Regarding sick leave, the Agency denied ever “forcing” Complainant to take sick leave, and asserted that any sick leave Complainant had taken was her choice. Regarding award nominations and placement on an operational review team, an Agency official acknowledged that some subordinates received awards, could not recall Complainant’s situation specifically on this matter, but asserted that neither award determinations not placement on operational review teams had anything to do with discriminatory animus of the bases which Complainant had raised. 2019001387 8 Regarding a fitness for duty examination, the Agency found, and the record supports, that management found it reasonable to order such an examination because of the lack of clarity in the physician notes submitted, and management’s consequential concern that Complainant might not be able to perform correctional duties. The Agency stressed that the examination was not overbroad, but merely reflected that the examining physician conducted a full physical. The Agency acknowledges that Complainant and Agency officials disagree regarding whether a Union official was involved in consideration of her reasonable accommodation request, and there is no evidence reflecting which party’s account is more accurate. The Agency notes that Complainant’s focus relates to the Union official’s recommendation that her reasonable accommodation request not be approved, and that the Union official was not authorized to speak to Agency management regarding Complainant’s condition. The Agency found that even if Complainant’s account regarding this claim is accurate, Complainant did not provide sufficient detail to reflect that information shared with the Union was private, that it implicated the Rehabilitation Act’s privacy provision, or that management displayed any discriminatory animus. The Agency found that the Union official, as well as management, “were genuinely concerned that she could not perform law enforcement duties.” In sum, with regard to her claim of harassment, we find Complainant failed to prove by a preponderance of evidence that she was subjected to harassment in violation of the Rehabilitation Act. Specifically, we find that Complainant failed to establish that any of the Agency's actions were motivated by discrimination based on her disability. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’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. 2019001387 9 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. 2019001387 10 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 September 17, 2020 Date