0120111290
09-11-2012
Michael S. Mulder, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Michael S. Mulder,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120111290
Hearing No. 530-2010-00158X
Agency No. 2009-22695-FAA-01
DECISION
On December 30, 2010, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 1, 2010, concerning his 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint Complainant worked as a Computer Specialist with the Agency's Architecture Planning Team, William J. Hughes Technical Center, Atlantic City International Airport in Atlantic City, New Jersey.
On July 29, 2009, Complainant filed an EEO complaint, as amended, alleging that:
1. he was discriminated against based on his race/color (Caucasian/white), sex (male), disability (non-paralytic spine disorder and high blood pressure), and reprisal for prior EEO activity when he was told he had to use annual leave to use the gym;
2. he was discriminated against based on the above bases when he received a letter of reprimand on April 29, 2009; and
3. he was denied reasonable accommodation based on his disability and retaliated against for prior EEO activity when the Agency denied:
(a) his request for a transfer per his May 2009 doctor's letter; and
(b) his request for an ergonomic chair.
The Agency dismissed claim 1 prior to the investigation on the grounds that Complainant did not initiate timely EEO counseling. At the conclusion of the investigation on the remaining claims, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). He requested a hearing but subsequently withdrew his request. The Agency then issued a final decision pursuant to 29 C.F.R. � 1614.110(b) dismissing claim 2 for being moot and finding no discrimination on claims 3 (a) and (b).
During the investigation Complainant stated that he was previously told he had to use annual leave if he wanted to use the gym, but later was permitted to use it during lunch. The record reflects that on May 21, 2008, Complainant's first line supervisor (S1 black female) in a team meeting reiterated a recent memo that employees were expected to use the gym during lunch or after work. Report of Investigation (ROI) Exhs. F2, Question A11; F15. On May 21, 2008, Complainant emailed S1 complaining that two years prior to the memo he was told to take annual leave when he used the gym without a mention of lunchtime. He continued that he questioned 50 people about the use of the gym, and not one was asked to take annual leave to use the gym.
On April 29, 2009, S1 reprimanded Complainant in writing for inappropriately touching co-worker 1 with his shoe during a meeting on March 18, 2009. Complainant was sitting with his legs crossed. When co-worker 1 made a joke referencing the town where Complainant lived Complainant was insulted and angrily touched co-worker 1 on his shirt with his shirt. After the meeting Complainant followed co-worker 1 to his cubicle and told him not to talk about his home anymore. Complainant contended that three black females engaged in similar conduct to him and were not reprimanded. It is uncontested that they worked in different areas and not for S1.
The reprimand contained grievance rights. Complainant filed a grievance, albeit a copy is not in the record. He was dissatisfied with the grievance resolution because it did not include removing the reprimand from a human resources discipline file.
The Agency dismissed claim 2 for being moot. It reasoned that the reprimand was removed from Complainant's OPF, and because he did not request compensatory damages, this removal constituted an interim event that completely and irrevocably eradicated the effects of the alleged discrimination, and Complainant did not show such an incident would likely recur. Referring to correspondence by an Agency Labor Relations Specialist the Agency found that while the reprimand will be maintained in a disciplinary file by Human Resources, it will not be disclosed to anyone. ROI, Exh. 4.
The investigation further showed that on May 21, 2008, Complainant informed S1 that he wished to be transferred. He expressed an interest in being transferred to the Airport and Aircraft Safety R&D area. Management gave Complainant permission to transfer and his second line supervisor (S2, black female) contacted the manager in the above area on Complainant's behalf. Upon checking, however, Complainant learned that there were no vacancies there. ROI, Exh. F1, Question A13.
Around May 2009 Complainant's physician, who was board certified in physical medicine and rehabilitation and since 2001 treated his non-paralytic arthritic condition of the spine wrote that in his last visit on May 8, 2009, Complainant informed him his blood pressure was high for a week because of stress caused by S1 and S2. The physician wrote that Complainant said he has a family pre-disposition to heart attacks and stroke, that he took Complainant's blood pressure and it was borderline high and he was clearly agitated. The physician wrote that Complainant wanted to be moved to another section because of his condition and stress, and the physician asked that this be taken into account and to consider Complainant's request. On May 13, 2009, Complainant emailed his 3rd line supervisor (male) and another person that while he never had a bad evaluation there and had no problems with previous supervisors things were not that way with S1, and that he sought an eventual transfer out of his branch as mentioned in the doctor's note.
In seeking to clarify Complainant's complaint the Agency asked him if he requested an accommodation for his work station, and if so when and to whom. Complainant mentioned the chair but gave no further information on it. During the EEO investigation he submitted documentation that he raised having a high back chair in a prior EEO case that was pending in 2002, but decided not to receive it and dropped this request. ROI, Exh. F15. S1 indicated she was not aware of Complainant ever requesting a chair and she would have gladly obtained one if he asked. In response to detailed questions about his accommodation requests such as the dates they were made, the reason for them, to whom they were made, and the Agency's responses, regarding the chair Complainant wrote in his affidavit that he asked for an ergonomic chair and after much effort was given a chair, and gave no more information on this.
When the Agency asked Complainant questions to clarify his complaint he also raised that his request to telecommute was denied and wrote people whom he did not identify told him policy did not permit telework for medical conditions.
During the investigation Complainant submitted documentation that in April 2002 an identified "former boss" replied to his request to telecommute by indicating he would review how it impacted the department and Complainant's workload, and decided in May 2002 that Complainant was working on a project that was not amenable to telework because he had to interact with co-workers daily, but the possibility of telework would be considered after the project ended in some six to eight weeks. ROI, Exh. F15.
S1 stated that when Complainant was working with his EEO counselor, an apparent reference to the counseling in this case, the counselor informed her Complainant wanted to telework. S1 stated the telework policy is that an employee's work must be conducive to telework. S1 stated Complainant does mostly hands on work including lab work and inventory taking which require his physical presence.
The Agency found that Complainant was not an individual with a disability. It found that he did not establish a prima facie case of reprisal discrimination because he did not show S1 was aware of his prior EEO activity and some of the activity was years prior to the alleged discrimination. If found that assuming arguendo that Complainant was an individual with a disability he failed to make a "plausible" case of denial of reasonable accommodation. The Agency found that Complainant conceded he had an ergonomic chair, and that S1 and S2 took steps to lower his stress, such as arranging lab work assignments and contacting the manager in the Airport and Aircraft Safety R&D area to assist Complainant in his transfer request.
On appeal Complainant requests compensatory damages in connection with his complaint. He suggests S2 was aware of his prior EEO activity. He argues that the gym issue is timely because the matter is ongoing. He raises his May 2009 transfer request. Complainant writes that he requested an ergonomic chair years earlier and eventually got it after a delay. He argues that he was issued a "FRAC" account the Spring of 2010, it would allow him to telework at least some of the time, it could have been given to him years earlier, and he was denied the FRAC account by his former boss.
The Agency did not reply to Complainant's appeal brief. 1
ANALYSIS AND FINDINGS
On claim 1, in the absence of a statement to the contrary by Complainant, we find that he was permitted to use the gym during lunch without taking leave by May 2008.
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The time limit to seek EEO counseling shall be extended when an individual shows he did not know and reasonably should not have known that the discriminatory action or personnel action occurred. 29 C.F.R. � 1614.105(a)(2). The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
Complainant's May 21, 2008, email shows he had a reasonable suspicion of discrimination of discrimination by then. He did not initiate EEO counseling until April 30, 2009, long beyond the 45 calendar day time limit. On appeal Complainant argues that claim 1 is timely because it is ongoing. We disagree. This claim is not ongoing because by May 2008 Complainant was permitted to use the gym during lunch without taking annual leave and knew this. The Agency's dismissal of claim 1 is affirmed.
In light of the fact that Complainant requested compensatory damages on appeal we find that claim 2 is not moot.
EEOC Regulation 29 C.F.R. �1614.301 requires that where a person is employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a collective bargaining agreement (CBA) that permits allegations of discrimination to be raised in the negotiated grievance procedure, an election must be made to proceed under either the negotiated grievance procedure or the EEO complaint procedure (part 1614). Under the regulation, an election is indicated by the filing of a written complaint or timely grievance, whichever is done first. It also provides that an aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination.
As an employee of the Department of Transportation, Complainant is employed by an agency subject to 5 U.S.C. 7121(d). Also a reading of the CBA shows Complainant was covered by a CBA that permitted allegations of discrimination to be raised in the negotiated grievance procedure. ROI, Exh. F12, Articles 29 and 30. While the record does not contain a copy of the grievance S1 stated in her affidavit that Complainant filed a grievance on the reprimand, and a grievance meeting was held on June 19, 2009, to resolve the matter. This is corroborated by a contemporaneous email dated June 19, 2009, by an Agency Labor Relations Specialist confirming that as a result of a step 3 meeting pursuant to Article 30 of the CBA (which sets forth the grievance procedure) the Agency decided to remove the reprimand from Complainant's OPF that day. ROI, Exh. F5. This shows Complainant filed his grievance prior to filing his EEO complaint on July 29, 2009, which contained claim 2. Regardless of whether Complainant was satisfied with the grievance resolution, his later EEO claim on the same matter (claim 2) must be dismissed under 29 C.F.R. �1614.301 & .107(a)(4). Accordingly, claim 2 is dismissed.2
Even if claim 2 was not subject to dismissal under 29 C.F.R. �1614.301 & .107(a)(4), he failed to prove discrimination on this claim. As an initial matter we will assume without finding that Complainant is an individual with a disability. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
The Agency explained that it reprimanded Complainant for the reasons in the letter of reprimand. Complainant argues this is pretext because three black female employees who allegedly engaged in similar conduct were not reprimanded. We disagree because the comparative employees did not work for S1, who reprimanded Complainant. Accordingly, we find no discrimination on claim 2.
An agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). Here, as a reasonable accommodation Complainant requested a transfer, i.e., claim 3. Complainant explained that working for S1 made his blood pressure high and he had problems with S1. An employer does not have to change a person's supervisor as a form of reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 33 (as revised Oct. 17, 2002). Although an employer is not required to change supervisors, the ADA may require that supervisory methods be altered as a form of reasonable accommodation. Id. S1 stated Complainant gave him copies of doctor's notes, including the need for less stress and that she asked him repeatedly what he wanted her to do and he gave no specific response. Complainant has not shown that the Agency unlawfully denied him the reasonable accommodation of a transfer, nor has he shown that its failure to give him one was reprisal for EEO activity. The Agency gave him permission to transfer and Complainant has not pointed to any vacancies to which he could have been reassigned.
Complainant also requested telework as a reasonable accommodation. While this issue was not defined by Agency it was investigated and Complainant raises it on appeal, so we will address it here. S1 stated the telework policy is that an employee's work must be conducive to telework. S1 stated Complainant does mostly hands on work including lab work and inventory taking which require his physical presence. On appeal Complainant counters that he was issued a "FRAC" account the Spring of 2010, it would allow him to telework at least some of the time, it could have been given to him years earlier, and he was denied the FRAC account by his former boss. This generalized argument does not persuasively rebut S1's affidavit statement that Complainant's job was not suitable for telework. To the extent Complainant's complaint regards telework more than 45 calendar days prior to his initiation of EEO contact on April 30, 2009, such as prior to working for S1, this claim was untimely raised. Because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time an employee needs it. Because each occurrence is a discrete discriminatory act, however, relief usually will be limited to occurrences within the filing period. EEOC Compliance Manual Section 2, "Threshold Issues," No. 915.003, at 2-73 and 2-74 (May 12, 2000, revised on July 21, 2005).
Complainant has failed to prove discrimination on claim 3(b), delay in providing him an ergonomic chair. As set out above, despite being asked to provide information and facts about his request and the Agency's response Complainant provided almost no information. S1 indicated she was not aware of Complainant ever requesting a chair and she would have gladly obtained one if he asked. To the extent this claim regards not being provided an ergonomic chair more than 45 calendar days prior to Complainant initiating EEO contact this claim was untimely raised.
CONCLUSION
The Agency's decision to dismiss Complainant's complaint in part, and to find no discrimination on the remainder of the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
September 11. 2012
__________________
Date
1 It is not clear whether the Agency had an opportunity to reply. The FAD advised Complainant to send a copy of his appeal to the Agency's Departmental Office of Civil Rights and Office of General Counsel to addresses in Washington, DC, but he sent his appeal brief to a regional Departmental Office of Civil Rights in Cambridge, Massachusetts, which previously handled his complaint.
2 In its FAD the Agency found that while Complainant stated he filed a grievance on his letter of reprimand, and the CBA permitted allegations of discrimination to be raised it could not dismiss this claim pursuant to 29 C.F.R. �1614.107(a)(4) because the record did not contain a copy of the grievance. We disagree because other evidence confirms Complainant filed a grievance on the reprimand under the negotiated grievance procedure prior to filing his EEO complaint on the same matter.
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