01A42966
08-25-2006
Marvin E. Ellis, Complainant, v. Margaret Spellings, Secretary, Department of Education, Agency.
Marvin E. Ellis,
Complainant,
v.
Margaret Spellings,
Secretary,
Department of Education,
Agency.
Appeal No. 01A42966
Hearing No. 370-02-2522X
Agency No. ED-2000-03-00
DECISION
JURISDICTION
On April 2, 2004, complainant filed an appeal from the agency's March
5, 2004 final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a GS-12 Equal Opportunity Specialist Program Analyst in the agency's
Office of Civil Rights in San Francisco, California.
In a bench decision regarding a previous complaint dated March 5,
1997, an Administrative Judge (AJ) found that the agency failed to
accommodate complainant's disability when it gave him a caseload that
required overnight travel. Complainant reached a settlement agreement
on this previous complaint on May 23, 1997, wherein the agency agreed to
"continue the elimination of overnight travel from complainant's job
requirements."
On August 5, 1999, complainant's physician informed the agency that
complainant needed to work flexiplace, specifically, three days per week
at home, so that he could undergo leg treatment. In a letter dated
September 7, 1999, complainant's supervisor (S1) requested additional
medical documentation from complainant regarding his flexiplace request.
Complainant testified that he was granted flexiplace for one week
in August 2000, but was otherwise denied flexiplace. Complainant's
second-line supervisor (S2) testified during the hearing that complainant
was not granted a regular flexiplace accommodation because flexiplace
is only granted on an as-needed temporary basis, not on a fixed basis.
After the 1997 settlement agreement was executed, complainant was elected
to a union office and requested to attend union meetings and training
on agency time, which required overnight travel. In letters dated May
20 and June 23, 2000, complainant's physician informed the agency that
complainant was medically able to travel nationally at a frequency of one
trip per week and that complainant was advised to restrict his travel to
non-remote areas and destinations where a backup system for his oxygen
pressure pump could be obtained on an emergency basis. Nevertheless, the
agency denied complainant's request to travel to union meetings because
it determined that the terms of the settlement agreement required it to
eliminate overnight travel from complainant's job requirements.
On June 3, 2000, complainant contacted an EEO Counselor and filed a
formal EEO complaint on July 7, 2000, alleging that he was discriminated
against on the basis of disability (impairments: sleep apnea, depression,
degenerative joint disease, hypertension) and in reprisal for prior
protected EEO activity under the Rehabilitation Act when:
1. In or about 1999 and 2000, and thereafter, the agency failed to
provide reasonable accommodation for complainant's disability, including
modifying his work-related travel restrictions; denying him flexiplace;
and delaying the provision of an ergonomic chair; and
2. During 1999 and 2000 and thereafter, complainant was subjected to
harassment and/or disparate treatment when the agency required him
to investigate cases in the California cities of San Luis Obispo,
Mt. Shasta, and Garden Grove, which are outside his commuting area,
and the agency made unsatisfactory appraisals of his performance.
At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. On May 28, 2003, four witnesses, including
complainant, testified in-person before the AJ. On June 17 and 18, 2003,
two of complainant's physicians testified on his behalf via telephone.
On November 21, 2003 and January 16, 2004, the AJ issued his decisions
decisions.1
The AJ initially found that the agency provided reasonable accommodation
for complainant's disabilities during the relevant time period by
adhering to an earlier settlement agreement in which it agreed to
eliminate overnight travel related to his employment with the agency.
The AJ further determined that having to wait a period of time before the
agency met complainant's request for an ergonomic chair did not constitute
a failure to reasonably accommodate him because several alternatives were
available during the interim. The AJ noted that one of complainant's
physicians had testified that complainant could have performed exercises
and gotten up out of his non-ergonomic chair periodically to move about
to improve his back during the interim period.
However, the AJ further determined that in August 1999, the agency
failed to engage in an interactive process promptly upon receiving the
accommodation request to allow complainant to work at home as part of a
medical treatment plan designed to address complainant's disabilities.
The AJ concluded that the requested accommodation was possible because
the agency had a work-at-home policy and S1 had approved a flexiplace
work-at-home policy for other employees. The AJ concluded that S1's
testimony was not credible "altogether" on this particular matter because
he contradicted previous statements he made under oath during hearing
testimony regarding the flexiplace policy.
The AJ further determined that the agency's response to complainant's
request to work flexiplace was not in good faith because the office
manager attempted to distinguish categories of employees entitled to
work-at-home opportunities at the hearing in an arbitrary and illogical
manner and because S1 failed to initially acknowledge the existing
flexiplace policy to complainant and demonstrated "gratuitous animus"
by suggesting that complainant contrived a scheme to work at home for
some "iniquitous reasons." The AJ ordered the agency to pay complainant
$5,000.00 in non-pecuniary compensatory damages, $50,207.75 in attorney's
fees and costs, and to conduct compulsory EEO training for all managers
and staff at the San Francisco office. The AJ further stated that since
complainant's medical conditions may have changed since the execution
of the settlement agreement, the agency was generally "advised to engage
forthwith in the interactive process with complainant in order to adjust
current accommodations, if appropriate."
Regarding claim 2, the AJ concluded that complainant failed to prove
that he was subjected to the alleged actions because of reprisal or
disability. Further, the AJ found that complainant's opinion that his
investigative case assignments were so far from his commuting area to
require overnight travel was not supported by the evidence. The AJ also
determined that complainant's supervisor (S1) provided "straightforward"
testimony corroborated by complainant's performance evaluations that
indicated that complainant's evaluations were not affected by his travel
restrictions. The AJ further concluded that the alleged matters were
not severe or pervasive enough to constitute harassment. The agency
subsequently issued a final order fully adopting the AJ's findings and
accompanying order of relief.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred by finding that
the agency did not deny him reasonable accommodation when it denied
his request for overnight travel. Complainant noted that one of his
physicians testified that when complainant puts on his mask at night, he
"does fine" and further testified that complainant's hypertensive heart
disease, angina, chest pains, and blood pressure are all "under control
on medication" and that complainant could now travel with precautions.
Complainant further contends that the AJ's order that the agency is
advised to engage in the interactive process with complainant in order to
adjust his accommodation with respect to overnight travel conflicts with
his finding that the agency did not violate the Rehabilitation Act with
respect to this matter because if there was no violation, there should be
no need to now engage in the interactive process. Complainant further
argues that the AJ erred by finding no retaliatory harassment with
respect to claim 2. Finally, complainant contends that the AJ erred by
awarding only $5,000.00 in compensatory damages because this amount is
insufficient compensation for complainant's pain and suffering.2
In response, the agency contends that complainant is conflating the
accommodation he received pursuant to the May 23, 1997 settlement
agreement with his desire for a new accommodation as a result of his
election to the position of local union president. The agency argues
that once complainant became union president, he should have sought
modification of the terms of the settlement agreement, but he did not
submit medical evidence stating he could travel in limited circumstances
until June 23, 2003, after the instant complaint was filed. The agency
maintains that it would have been illogical for the agency to allow
complainant to travel overnight for union-sponsored activities, but not
require him to travel overnight for his work assignments. The agency also
argues that the AJ only advised the agency to engage in the interactive
process to adjust accommodations that may need to be reassessed.
The agency further argues that complainant did not establish a casual
connection between his prior EEO activity and the actions alleged in
claim 2, and the alleged actions were not severe or pervasive enough to
constitute harassment. The agency also argues that complainant is not
entitled to more than $5,000.00 in compensatory damages.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
ANALYSIS AND FINDINGS
Claim 1
Overnight Travel
Complainant contends that the agency used his settlement agreement to deny
him a reasonable accommodation when it denied his request for overnight
travel to attend union events. Complainant maintains that the agency
seeks to "extend conditions of the Settlement Agreement to areas that it
does not cover, specifically to issue a blanket denial of overnight travel
to attend occasional events and training where complainant has arranged
transportation with reasonable accommodation." Upon review of this
matter, we first note that this matter is a disparate treatment claim,
not a reasonable accommodation claim as maintained by complainant.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). This established order of analysis in discrimination cases,
in which the first step normally consists of determining the existence
of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming that complainant established a prima facie case of disparate
treatment, we find that the agency provided legitimate, non-discriminatory
reasons for not allowing complainant to attend events that required
overnight travel. A review of the May 1997 settlement agreement confirms
that the agency agreed to eliminate overnight travel from complainant's
job duties, which we find include collateral duties such as union
meetings and events. We find complainant's argument that he should
not be given assignments that require overnight travel with respect
to his core job duties but be allowed to travel with respect to his
collateral union duties to be unpersuasive. The same accommodations
that complainant maintains would allow him to travel overnight for union
events would also apply to his core job duties, yet complainant argues
that the elimination of overnight travel should only be narrowly relaxed
with respect to his collateral duties. We find that complainant has
provided no evidence that the agency's stated reasons for its actions
were pretext for unlawful discrimination and therefore find that the AJ
properly found no discrimination for claim 1.3
Ergonomic Chair and Flexiplace
We find that substantial evidence supports the AJ's conclusion that
the agency's delay in providing complainant with an ergonomic chair
did not deprive complainant of a reasonable accommodation during the
interim period it took to approve complainant's request. The agency
fully adopted the AJ's decision, including the AJ's finding that the
agency denied complainant a reasonable accommodation when it failed to
grant his request to work at home, which was prescribed by his physician
so that he could comfortably elevate his swollen legs at home and avoid
the physical demands of commuting. Because neither side contests this
finding, we will not review or disturb it on appeal.
Compensatory Damages
Because the AJ found that the agency did not act in good faith when it
failed to provide a reasonable accommodation, the agency must provide
the complainant with a remedy that constitutes full, make-whole relief to
restore him as nearly as possible to the position he would have occupied
absent the discrimination. See, e.g., Franks v. Bowman Transportation
Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July
21, 1994). To receive an award of compensatory damages, a complainant
must demonstrate that he has been harmed as a result of the agency's
discriminatory action; the extent, nature, and severity of the harm; and
the duration or expected duration of the harm. Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. den.,
EEOC Request No. 05940927 (December 11, 1995); Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992),
at 11-12, 14.
In this case, complainant testified that because of the agency's failure
to accommodate him with flexiplace, he dreaded to go to work, suffered a
"great deal of stress," experienced difficulty sleeping and fluctuations
in his weight. Given the limited information in the record of emotional
harm suffered by complainant, we find that the award of $5,000 in
non-pecuniary compensatory damages was appropriate and supported by
substantial evidence. See Vitale v. Social Security Administration,
EEOC Appeal No. 01A4440 (February 7, 2005) ($5,000 in non-pecuniary
damages awarded where complainant suffered from severe emotional
distress, humiliation, hurt feelings, anxiety and mental suffering after
the agency's failure to provide reasonable accommodation); see also
Benson v. Department of Agriculture, EEOC Appeal No. 01952854 (June 27,
1996)($5,000.00 in non-pecuniary damages where complainant experienced
stress, skin rashes, withdrawal, and isolation). We conclude that
complainant failed to show that he was entitled to more than $5,000 in
compensatory damages. This amount meets the goals of not being motivated
by bias or prejudice, not being "monstrously excessive" standing alone,
and being consistent with the amounts awarded in similar cases.
Claim 2
Complainant further contends that the agency discriminated and retaliated
against him when it assigned cases that required him to travel to
distant areas and made unsatisfactory appraisals of his performance.
S1 testified that complainant was not given a work assignment that
required overnight travel. S1 stated that complainant's cases were
either in the San Francisco Bay commuting area or did not require
onsite visits by complainant. S1 stated that complainant never informed
him that any of his assigned cases would require overnight travel.
S1 further testified that complainant received a "Pass" rating on
a pass/fail rating scale for both of the relevant appraisal years,
and complainant's work performance was not adversely evaluated because
of his overnight travel restrictions or disability. We find that the
agency provided legitimate, non-discriminatory reasons for its actions.
Moreover, we note that the record reveals that complainant received
a "pass" appraisal rating for the relevant time period, and there
is no record evidence that he received any negative evaluations on
his appraisals of record. Further, we determine that complainant has
failed to provide any evidence to rebut his supervisor's claim that the
cases assigned to him did not require overnight travel. The AJ found
S1's testimony demeanor to be "straightforward" and credible regarding
these particular matters. A credibility determination of an AJ based
on the demeanor of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony of the witness
or the testimony otherwise so lacks in credibility that a reasonable
fact-finder would not credit it. See EEO Management Directive 110,
as revised, Nov. 9, 1999 (MD-110), at 9-16. We find that complainant
failed to provide persuasive evidence that the agency's proferred
reasons for its action were pretext for unlawful discrimination.
We further find that the alleged matters are not severe or pervasive
enough to constitute a hostile work environment. Clark County School
Dist. v. Breeden, 532 U.S. 268 (2001) (quoting Faragher v. Boca Raton,
524 U.S. 775, 786 (1998) (some internal quotation marks omitted)); see
also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998)
(Only harassing conduct that is "severe or pervasive" can produce a
"constructive alteration in the terms or conditions of employment").
Therefore, we find that the AJ properly found no discrimination with
respect to complainant's evaluations and assignments.
Finally, we note that two witnesses testified telephonically, without
the objection of the parties.4 The Commission has held that testimony
may not be taken by telephone in the absence of exigent circumstances,
unless at the joint request of the parties and provided special
conditions have been met. Louthen v. United States Postal Service,
EEOC Appeal No. 01A44521 (May 17, 2006).5 Since the facts of this case
pre-date Louthen,, we will assess the propriety of conducting the hearing
telephonically, by considering the totality of the circumstances. First,
we find that there is no evidence in the record that that there were
exigent circumstances in this case. Nevertheless, we do not discern
any specific issues of credibility that might have been affected by the
taking of the telephonic testimony of the two physicians. Under these
circumstances, the Commission finds that the taking of the testimony
telephonically constituted harmless error. See Sotomayor v. Department
of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).
CONCLUSION
Accordingly, the Commission AFFIRMS the agency's final order and directs
the agency to undertake the remedial action set forth in the order below.
As there is no evidence that complainant continues to need a flexiplace
arrangement for medical treatment, we decline to order the agency to take
any action in that regard. However, should complainant be in current
need of reasonable accommodation, we recommend that the parties engage
in the interactive process to determine what reasonable accommodation,
if any, should be offered. Both parties are advised that the Commission
has issued extensive guidance concerning reasonable accommodation which
can be found at www.eeoc.gov.
ORDER
To the extent has not already done so, the agency is ordered to undertake
the following remedial actions:
1. Within thirty (30) calendar days from the date this decision becomes
final, the agency shall pay to complainant $5,000.00 in non-pecuniary
compensatory damages.
2. Within thirty (30) calendar days from the date this decision becomes
final, the agency shall pay complainant $50,207.75 in attorney's fees
and costs.
3. The agency shall provide eight (8) hours of EEO training to
complainant's immediate and second-line supervisors regarding their
obligations under the Rehabilitation Act.
4. The agency shall consider taking disciplinary action against the
supervisors and management officials named in the instant matter, if they
are still employed by the agency. The agency shall report its decision to
the compliance officer. 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. If the individuals have left the agency's employ,
the agency shall furnish documentation of her departure date.
POSTING ORDER (G0900)
The agency is ordered to post at its San Francisco, California facility
copies of the attached notice. Copies of the notice, after being signed
by the agency's duly authorized representative, shall be posted by
the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (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 ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_August 25, 2006________________
Date
1The initial decision on November 21, 2003 did not include an award
of attorney's fees and costs, whereas the nearly identical January 16,
2004 decision included such relief.
2 Complainant did not specify what amount he is entitled to receive for
non-pecuniary compensatory damages on appeal.
3 We note that if complainant feels that his condition has improved to
such an extent that he can now travel overnight, he is free to negotiate
with the agency to void the settlement agreement.
4 The mere lack of objection is not dispositive, however. See Louthen
v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17,
2006).
5 In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent.
When assessing prior instances of telephonic testimony, the Commission
will determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further, where
telephonic testimony was improperly taken, the Commission will scrutinize
the evidence of record to determine whether the error was harmless.
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01A42966
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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