0120141520
10-21-2016
Marina A.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marina A.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120141520
Hearing No. 530-2009-00045X
Agency No. P-2007-0238
DECISION
On March 12, 2014, Complainant filed an appeal from the Agency's April 4, 2014, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.2 The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the AJ's issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency discriminated against her on the bases of disability (sleeping pill addiction) and reprisal for prior protected EEO activity when it terminated her during her probationary period.
BACKGROUND
On June 12, 2006, Complainant was appointed as a Correctional Officer at the Agency's U.S. Penitentiary Canaan in Waymart, Pennsylvania. Complainant's appointment was subject to the completion of a one-year probationary period. Complainant's chain of command included the Lieutenant (S1), the Captain (S2), the Associate Warden of Programs (S3), and the Warden (S4).3
On September 6, 2006, Complainant informed S1 that she was seeking medical treatment for her sleeping pill addiction and would possibly be admitted to a rehabilitation program. Because Complainant did not have any accrued sick leave or annual leave, S1 advised her to request leave without pay (LWOP). On September 7, 2006, Complainant was hospitalized and informed S1 about her hospitalization. On September 12, 2006, Complainant faxed a request for LWOP to S2. Specifically, Complainant stated that she was requesting LWOP "due to unforeseen recent medical problems." In addition, Complainant stated, "The anticipated date I would like to return to work is September 27, 2006." On September 13, 2006, S4 approved Complainant's request for LWOP. On September 27, 2006, Complainant's doctor faxed a note to the Agency indicating that Complainant was a patient under his care at the hospital from September 7-27, 2006 and could return to work without restrictions on October 2, 2006. The fax was addressed to S2 and S4, but was received by S1. On September 29, 2006, according to Complainant, she called S2 to confirm her work schedule for October 2, 2006. Complainant alleged that S2 told her what shift to report to, said "welcome back," and did not mention her absence from September 27-29, 2006.4 On October 2, 2006, Complainant returned to work.
On October 6, 2006, the Agency conducted an administrative inquiry into Complainant's alleged absence without leave (AWOL) from September 27-29, 2006. In an October 6, 2006, sworn affidavit for the administrative inquiry, Complainant stated that, after she was released from the hospital on September 27, 2006, she went to live in a safe house and "wanted September 27, 2006 to October 2, 2006, off for personal reasons."5 In addition, Complainant stated that she did not call the Lieutenant's Office to notify them that she was not reporting to work for those days or to request any LWOP.
On December 4, 2006, S4 issued a notice terminating Complainant during her probationary period for unsatisfactory conduct. Specifically, S4 stated that Complainant was AWOL for 24 hours from September 27-29, 2006.
EEO Complaint
On March 20, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (sleeping pill addiction) and reprisal for prior protected EEO activity when, on December 4, 2006, it terminated her during her probationary period.6
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 AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's June 17, 2011, motion for a decision without a hearing and issued a decision without a hearing on February 20, 2014. In her decision, the AJ analyzed Complainant's complaint under a disparate treatment framework and found that she did not prove that the Agency discriminated against her as alleged. Regarding disability discrimination, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for terminating Complainant during her probationary period; namely, she was deemed AWOL from September 27-29, 2006 because she did not follow the Agency's policy of personally contacting a supervisor to request additional leave. In addition, the AJ found that Complainant did not put forth sufficient evidence showing that the Agency's articulated reason was pretextual. Regarding reprisal discrimination, the AJ found that Complainant did not establish a prima facie case because she did not put forth evidence that she engaged in prior protected EEO activity
The Agency subsequently issued a final order fully implementing the AJ's decision.
CONTENTIONS ON APPEAL
Complainant did not submit a statement or brief in support of the appeal to the Office of Federal Operations within 30 days of filing the notice of appeal.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B (Aug. 5, 2015) (providing that an AJ's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See EEO MD-110, Ch. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that the Commission "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
AJ's Issuance of a Decision Without a Hearing
We 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 Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review of the record, we find that there is no genuine issue of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond to such a statement, and she was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Denial of Reasonable Accommodation
We assume, without so finding, that Complainant is an individual with a disability under the Rehabilitation Act. An agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. 29 C.F.R. � 1630.9.
When an individual decides to request accommodation, she must let the agency know that she needs an adjustment or change at work for a reason related to a medical condition. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (as revised Oct. 17, 2002). A health professional may request a reasonable accommodation on behalf of an individual with a disability. Id. at Question 2. Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability. Id. at Leave. An employee, however, must show a nexus between the disabling condition and the requested accommodation. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002) (citing Wiggins v. U.S. Postal Serv., EEOC Appeal No. 01953715 (Apr. 22, 1997)).
Upon review of the record, we find that the Agency did not deny Complainant a reasonable accommodation. First, regarding the pre-September 27, 2006 time period, we find that the Agency accommodated Complainant. Specifically, the documentary evidence in the record reflects that the Agency permitted Complainant to use LWOP as requested. Second, regarding the September 27-29, 2006 time period, we find that the Agency's actions did not amount to a denial of accommodation. Specifically, Complainant did not establish the requisite nexus between her sleeping pill addiction and her need for LWOP on those dates. Although Complainant's doctor indicated that she could return to work on October 2, 2006, he also indicated that she was under his care only through September 27, 2006. Even Complainant herself admitted to the Agency in her October 6, 2006, sworn affidavit for the administrative inquiry that she "wanted September 27, 2006 to October 2, 2006, off for personal reasons."
Based on the above, we conclude that Complainant did not establish her claim of denial of reasonable accommodation.
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Upon review of the record, we find that the Agency did not subject Complainant to disparate treatment on the bases of disability or reprisal for prior protected EEO activity when it terminated her during her probationary period.
First, assuming, arguendo, that Complainant established a prima facie case on the alleged bases,7 we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, S4 averred that Complainant was AWOL from September 27-29, 2006 because she did not have approved leave for those days and did not properly request leave in accordance with the Agency's leave policy. In addition, S4 averred that the Agency's leave policy required Complainant to personally contact a supervisor to request leave instead of relying on the doctor's fax. Moreover, S4 averred that Complainant was aware of the leave policy because she had followed the leave policy when she contacted S2 directly on September 12, 2006 to request leave. Further, S4 averred that he had very limited options for disciplining a probationary employee and that he really only had two options when a probationary employee engaged in misconduct: (1) take no action, which was a practice that was very much frowned upon and highly unusual; or (2) terminate the employee, which was the more widespread practice. Finally, S2, S3, and the Employee Services Manager similarly averred that the Agency's leave policy required Complainant to personally contact a supervisor to request leave.
Second, we find that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was a pretext for disability or reprisal discrimination. Instead, the documentary evidence in the record supports the Agency's reason. Specifically, regarding requesting leave, the Agency's policy states: "Employees are required to request sick leave personally (unless they are too sick to do so) for each day that they are ill or injured unless the supervisor has approved other arrangements. Until notification is given, supervisors cannot grant sick leave and employees may be considered as [AWOL] until such time as they notify their supervisors." In addition, regarding the removal of probationary employees, the Agency's policy states: "The usual reasons for these removals are unacceptable performance, Glynco failure, [AWOL], or misconduct . . . It is widely believed that removal is the only option available no matter how minor the conduct. This is because neither governing statutes nor regulations provide for a process other than removal." Moreover, there is no evidence in the record that the Agency treated Complainant differently than similarly situated probationary employees who were not disabled or who had not engaged in prior protected EEO activity. See generally EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, at 15-V.A.2 and 15-VII.B.7 (Apr. 19, 2006) (if an employee alleges that his race was a reason he was discharged for misconduct, similarly situated employees should be identified who engaged in misconduct of comparable seriousness; policies regarding discharge must be enforced in an evenhanded manner, without regard to race).
Based on the above, we conclude that Complainant did not establish her claim of disparate treatment on the bases of disability or reprisal for prior protected EEO activity.
CONCLUSION
The AJ's issuance of a decision without a hearing was appropriate. Complainant did not establish that the Agency subjected her to discrimination on the bases of disability or reprisal for prior protected EEO activity when it terminated her during her probationary period. Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order finding that Complainant did not establish discrimination as alleged.
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 (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
__10/21/16________________
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 filed the appeal on March 12, 2014, following her receipt of the Equal Employment Opportunity Commission Administrative Judge's (AJ) February 20, 2014, decision. We note that Complainant's appeal was premature at the time of the filing. However, because the Agency issued a final order on April 4, 2014 while Complainant's appeal was pending, we find that the appeal is currently ripe for review.
3 The record contains sworn affidavits from S2, S3, and S4, but not S1.
4 S2 averred that he did not recall the conversation.
5 During the EEO process, Complainant clarified her reasons for being off work during that period. In her formal complaint, Complainant stated that she used the time "to adjust to [her] new environment at the [s]helter/[s]afe [h]ouse." In her June 2008 affidavit, Complainant stated that she "had to find living arrangements." In her July 2011 affidavit, Complainant stated that she spoke with her doctor about her transition from the hospital, he was aware of her living situation, and he felt it was best that she not return to work until October 2, 2006 so she could secure shelter.
6 Complainant initially alleged the additional basis of sex (female), but subsequently withdrew that basis in her July 15, 2011, opposition to the Agency's motion for a decision without a hearing.
7 We note that protected opposition activity includes requesting reasonable accommodation for disability. EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, � II.A.2.e (Aug. 25, 2016).
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