0120080260
08-05-2010
Norman F. Bergren, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Norman F. Bergren,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120080260
Agency No. 06-57-00009
DECISION
On October 17, 2007, Complainant filed an appeal from the Agency's September 13, 2007 final decision 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 decision.
ISSUE PRESENTED
Whether the Agency correctly determined that it did not violate the Rehabilitation Act with respect to various personnel actions involving Complainant.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electronics Technician, ZT-0856-IV/02, in the Quantum Devices Group, Quantum Electrical Metrology Division in Boulder, Colorado. On April 26, 2006, Complainant filed an EEO complaint alleging that he was discriminated against on the bases of disability and reprisal for prior protected EEO activity [under the Rehabilitation Act] when:
(1) his Supervisor (S1) and the Division Chief (D1) did not allow him to attend conferences;
(2) S1 continuously failed to allow him to complete projects, (and) write tasks and assignments listed by priority;
(3) S1 and D1 failed to respond to his request to be transferred to another group;
(4) S1 continuously made derogatory and inappropriate comments about him; and
(5) S1 failed to correct his performance plan.
Complainant further alleged discrimination due to his disability and in reprisal for filing the first EEO complaint, when subsequent to July 13, 2005:
(6) S1 failed to accommodate him by structuring his daily tasks in an email format;
(7) S1 and the Quantum Devices Group Leader (S2) have ignored his doctor's recommendations for reasonable accommodation;
(8) S1 and S2 failed to engage him in the interactive process for reasonable accommodation;
(9) the Department failed to expeditiously respond to his request for accommodation made in August 2006; and
(10) S1 failed to respond to his request to attend the ASC Conference from August 27, 2006 to September 1, 2006.
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). In accordance with Complainant's request, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. � 1614.110(b).
Final Agency Decision
The FAD first found that issue (1) was subject to dismissal as untimely. Specifically, Complainant contacted an EEO Counselor on October 17, 2005. The FAD found that the issue concerns Complainant's assertion that on July 13, 2005, he met with management to discuss why he could not attend conferences. Complainant alleged that at that time, S1 stated that he, Complainant, could not go because S1 was "cheap" and did not feel it was worth Complainant's time. The FAD found that Complainant had reasonable notice as of July 13, 2005, of possible unlawful employment discrimination and he should have contacted the EEO office within 45 calendar days, but failed to do so.
Next, the FAD found that Complainant's claim regarding disability discrimination primarily concerned his assertion that management failed to engage in an interactive discussion with him and, as a result, S1 did not provide him with adequate effective accommodations, causing him ultimately to request a reassignment.1 Complainant also argued that management engaged in discriminatory conduct when it failed to grant his request for a reasonable accommodation involving a reassignment to a different organization. Complainant asserted that S1 failed to properly accommodate him when management did not allow him to complete projects and would not provide him with written tasks and assignments and list them by priority. He also alleged that S1 failed to accommodate him by providing his daily tasks in an e-mail format.
Next, the FAD assumed, without finding, that Complainant established that he is an individual with a disability because of having Attention Deficit Hyperactivity Disorder (ADHD), and was entitled to coverage under the Rehabilitation Act. S1 stated that he and Complainant participated in an alternative dispute resolution (ADR) process, beginning November 17, 2005, to address Complainant's request for accommodations. During discussions, Complainant indicated that he would benefit from additional written instructions. Although they never signed a final agreement, S1 stated that he formalized the use of structured task lists as a way to provide work assignments to Complainant starting in April 2006. He provided examples of these task lists for the record. S1 stated that Complainant would occasionally express confusion when multiple tasks were assigned to him at once. He stated that Complainant would, at times, suggest approaches to the work which were not consistent with the overall goals of the project. S1 maintained that when Complainant expressed confusion, he would clarify priorities and provide him written responses if Complainant so requested.
S1 stated that on March 23, 2006, Complainant made a formal written request for accommodation of his ADHD. In this e-mail request, Complainant asked for a transfer to another "Project group." S1 stated that he sent the request to management since he had no authority to transfer Complainant from his work group. S1 stated he discussed the situation with S2 and the Division Chief. He stated he was not a party to discussions concerning the reassignment request but was later told that the Division Chief and S2 considered alternatives including attempts to find another position for Complainant.
As to the harassment claim(issue (4), the FAD found that Complainant objected to the type of interactions he had with S1 and characterized them as "harassment." In one example, Complainant wrote to S2 that he felt S1 was increasing his harassment due to Complainant having filed a "grievance." He described an interaction in great detail in which S1 was trying to give him information regarding Complainant's work for another supervisor. S2 responded that based on his assessment of the situation and in consultation with the Human Resources Office, he concluded this was not harassment. He noted that S1 was within his rights as a supervisor to ask about work assignments Complainant was completing. He noted that S1's responsibility with respect to Complainant's accommodations was to provide him with work assignments. S2 stated it was not part of Complainant's accommodations to "document in writing normal questions or conversations" between Complainant and his supervisor.
Further addressing the harassment claim, S1 stated that Complainant and he had an impromptu but lengthy discussion on October 11, 2005. He stated that Complainant accused him of saying that Complainant was drunk on July 29, 2005, in a telephone conversation with a vendor. He also claimed that S2 accused him of "sleeping on the floor behind a lab bench" and that other employees were laughing at him. S1 stated that he did joke with the vendor when making a comment such as asking where Complainant was even though he knew Complainant was standing next to the vendor.2 S1 stated that after Complainant complained about this on October 11, 2005, he no longer joked. The FAD concluded that even if the statements were made, they do not constitute harassment or create a hostile work environment.
The FAD concluded that Complainant had not established the severity of the conduct in question or that it was related to any protected basis of discrimination. Complainant, according to the Agency, did not establish that these alleged management statements were connected to his claim of disability and the alleged derogatory comments appear to have occurred before he engaged in EEO activity. Therefore, the FAD found that Complainant has not met his burden of proof with respect to his claim of hostile work environment. The FAD found no evidence of unlawful harassment.
Specifically addressing Complainant's claim that management ought to have corrected his performance plan to reflect that his performance was outstanding, issue (5), the Division Chief stated that he declined to do this because he thought Complainant's score, which was the highest technician rating in the division, was appropriate and that the evaluation of him was also correct. He stated also indicated that this was the only issue he was aware of between Complainant and S1 regarding the evaluation.
The FAD further found that with respect to the remaining claims involving management's alleged failure to reasonably accommodate him (claims 2, 3, 6, 7, 8 and 9), S1 explained that Complainant's tasks changed significantly in 2003 and 2004. He noted that previously, Complainant would work on one project for an extended period of time, sometimes even months. He stated that as the mission of the work group and its personnel changed, Complainant was required to perform a wider variety of tasks. He stated that he would work with Complainant to set priorities and help him structure work but noted that, at times, Complainant would receive more than one assignment. When this happened, S1 would talk to the individuals who needed Complainant to work on other tasks and then respond to Complainant. He cited an e-mail exchange on January 6, 2005, as an example of his efforts to work with Complainant. S1 stated that higher-level management officials handled Complainant's request for accommodations. He noted that the Doctor, NIST Health Unit reviewed recommendations from Complainant's doctors and incorporated them into her assessment of April 14, 2006. He stated he was comfortable with the Doctor's recommendations.
The FAD found that S1 addressed Complainant's claim that he would not engage in interactive discussions over the reasonable accommodation requests. He stated he could not recall an instance in which Complainant asked him to discuss the accommodations. Furthermore, he noted that Complainant consistently refused to have any discussions with him. S1 further noted that when he received an e-mail from a licensed clinical social worker on April 14, 2006, he responded three (3) days later offering to discuss the implementation of Complainant's accommodations. S1 stated he received an assessment of Complainant by the Medical Director, ADHD Treatment Center, and his recommendations on August 21, 2006 (issue (9)). He stated that he forwarded the recommendations to the Human Resources Office.
The FAD found that D1 stated that he believed management had granted all of Complainant's requests for accommodation except for changing supervisors and being allowed to tape record conversations.3 In addition, he believed the entire informal resolution process and the interactions thereafter were all part of an interactive process.
As to issue (10), the FAD noted that Complainant alleged that S1 did not grant his request to attend the ASC program from August 27 to September 1, 2006. Complainant stated that S1 initially refused. When Complainant subsequently received a memo from S1 on May 1, 2006, about the conference, he sent an e-mail to S1 asking if this meant he could now go. He alleged that S1 responded that he had not checked the mailing list and this was a mistake. Complainant alleged that he tried to get some clarification as to whether or not his supervisor was continuing to deny his request and that S1 never substantively responded. He never got to attend this conference and characterized management's confusing conduct as reprisal. The FAD found that Complainant did not show that the action (or omission to act) was related to his prior EEO activity, and therefore, the FAD found no discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates his version of the facts. He maintains that he was subjected to retaliation as a result of filing his formal complaint. He states that the Agency could have, and should have, accommodated him by providing him with a transfer to a different supervisor, as a form of reasonable accommodation. The Agency asks the Commission to affirm the FAD.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
As Complainant does not contest whether the dismissal of issue (1) on the grounds of untimely EEO counselor contact was proper, we shall not address that dismissal herein. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 9, Sec. IV(A) at p. 9-10 (November 9, 1999) provides that the Commission has the discretion to only review those issues specifically raised on appeal.
Disparate Treatment (Issues 5 and 10)
We analyze issues (5) and (10) within a disparate treatment framework. In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, then the complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Assuming Complainant can establish a prima facie case of discrimination and retaliation, the Agency has articulated legitimate, nondiscriminatory reason(s) for its actions. As to issue (5), Complainant contends that his performance appraisal rating should have been higher, and it stated that he was "reasonably flexible," and Complainant questions what this could possibly mean. The Division Chief stated "I declined to change his score because I thought his score of 85 (the highest technician score) was appropriate and that [S1's] evaluation of [Complainant] also was appropriate." ROI, Ex. 18. We find no persuasive evidence that the Agency was motivated by discrimination or retaliation.
As to issue (10) involving the denial of permission to attend the ASC Conference, S1 stated that he intended to send the announcement for the ASC Conference only to his program leaders, but erroneously sent it to all employees in his project. S1 stated that the ASC was not an appropriate meeting for Complainant to attend and he discussed with him more appropriate training opportunities. S1 stated that only he and one other individual attended the conference. Again, we find no persuasive evidence that the Agency was motivated by discrimination or retaliation.
Reasonable Accommodation (Issues 2, 3, 6, 7, 8, 9)
Under the Commission's regulations, 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). Assuming Complainant is disabled within the meaning of the Rehabilitation Act, this record indicates that Complainant was provided with several accommodations for his ADHD. For instance, Complainant's supervisor stated: "To facilitate interactions, [Complainant] and I would occasionally exchange task lists of [his] activities." ROI, Ex. 16, at 4. He further stated:
[Complainant] would occasionally express confusion when multiple tasks were assigned at once and sometimes suggest approaches to his work which, because he did not have access to all information, were not in the best interest of the project. Whenever he expressed confusion I would clarify the priorities and reasons for them. This was normally done verbally but whenever [Complainant] requested something in writing that request was honored.
ROI, Ex. 16, at 6. A document dated April 10, 2006, lists the following accommodations that were to be made for Complainant:
- ... provide [Complainant] with prioritized work assignments in writing prior to the start of each 2 week rotation.
- For work in support of the QIM project, these assignments will include written descriptions of the projects, broken into sub-tasks where appropriate.
- The primary technical point of contact will be identified for each project (or subtask). This is the individual [Complainant] is expected to contact for technical questions and assistance.
- Expected timing for each project will be discussed with [Complainant] prior to its initiation. One objective of this discussion is to structure assignments so that a definitive stopping point can be attained during the time available.
- [Management] and [Complainant] will review progress during the work on any given set of projects, and modify priority or timing as the work evolves. Changes will be written out to ensure they are clear.
ROI, Ex. 16, at 24.
We recognize that Complainant maintains that the accommodations that were provided were ineffective because S1 was abusive to him, and he insists that he should have been permitted to transfer to a different supervisor.4 However, a request for a reassignment to a new supervisor does not constitute a request for reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Question 33 (An employer does not have to provide an employee with a new supervisor as a reasonable accommodation).
To the extent that Complainant is requesting a reassignment as the accommodation of last resort, it is Complainant's burden to prove that there was a vacant, funded position for which he was qualified and to which she could have been assigned. See Bielfelt v. U.S. Postal Serv., EEOC No. Appeal 01A10475 (June 19, 2002). Complainant did not prove that there was such a position.
We note that Complainant and management disagree about whether the Agency properly engaged in an interactive process with Complainant. However, an Agency cannot be held liable for violating the Rehabilitation Act for failing to engage in the interactive process. Although the Commission requires an Agency to engage with an employee in an interactive process concerning reasonable accommodation, liability attaches only when the Agency actually improperly fails to provide a reasonable accommodation. Here, we do not find that the Agency failed to provide a reasonable accommodation.
We do not have the benefit of an AJ's findings after a hearing, and therefore, can only evaluate the facts based on the weight of the evidence presented to us. Based on this record, we decline to find that the Agency failed to meet its obligations under the Rehabilitation Act by failing to provide reasonable accommodation.
Harassment
With regard to issue (4), we note that to establish a claim of harassment a Complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (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; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or 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). 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 at 6 (March 8, 1994).
First, we note that S1 denied having made the comment attributed to him regarding Complainant being intoxicated. He states:
I reminded [Complainant] that his vendor and I tended to joke or banter a lot, (e.g., when [Complainant] was working at the vendor's shop and I would call with a question the vendor would sometimes say [Complainant's name]? I haven't seen him all day even though [Complainant] was standing beside him) and perhaps a comment had been misinterpreted. He told me that he did not appreciate my joking in any context and I did not joke with him after he told me of his concern.
ROI, Ex. 16.
Assuming, however, that the S1 did in fact make the comment as alleged, we do not find that Complainant was subjected to conduct that was severe or pervasive enough to alter the conditions of his employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). The Commission has repeatedly found that unless the conduct is very severe, a group of isolated incidents will not be regarded as creating a hostile work environment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996). A supervisor's remarks on several occasions unaccompanied by any concrete action are usually not sufficient to state a claim of harassment. Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996). We also find that Complainant has not shown a connection between his prior EEO activity or his disability, and the alleged harassing conduct.
To the extent that Complainant also alleges that he was subject to a hostile work environment with respect to issues (5) and (10), we find that this claim must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A finding of a hostile work environment is precluded by our determination above that Complainant failed to establish that issues (5) and (10) were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD.
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
_____8/5/10_____________
Date
1 We find that the reasonable accommodation claim incorporates issues (2), (3), (6), (7), (8), and (9).
2 In his notes, Complainant referenced S1's alleged comment made, in which he asked a vendor whether he was intoxicated. The vendor provided support for Complainant's claim, stating that in July 2005, he was providing contracting services to the NIST Boulder Lab. He stated at the time he was providing training to Complainant. He noted that S1 phoned and spoke to him. During that discussion, the vendor stated that S1 asked: "is [Complainant's first name] there and is [he] sober? The vendor stated that S1's comments surprised him and he thought they were inappropriate. He noted he had never observed Complainant intoxicated while at work. Complainant's supervisors both denied making the alleged statements.
3 Complainant asked permission to tape record individual and team meeting or verbal communications so he could refer to it later. ROI, Ex. 28., at 15.
4 Complainant's doctor stated: "I strongly recommend that [Complainant] be allowed to transfer to work under another supervisor. For whatever reason there is too much history between these two individuals for there ever to be an atmosphere in which reason can be heard." ROI, Ex. 28.
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0120080269
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080260