01A22661
11-24-2003
Robert E. Anderson, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Robert E. Anderson v. Social Security Administration
01A22661
11-24-03
.
Robert E. Anderson,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A22661
Agency No. 00-0454-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant, a GS-4 Warehouse File Clerk, alleged that the agency
had discriminated against him on the bases of race (Caucasian), sex
(male), disability (bipolar affective disorder), age (D.O.B. 4/8/49),
and reprisal for prior EEO activity when:
1) on December 7, 1999, his request for a transfer to the Southeastern
Program Service Center was denied;
2) in January or February 2000, management tried to intimidate him into
going back to work while he was taking a break; and
3) on February 14, 2000, he was assigned to dock duty for a week, which
required him to unload trucks and separate and move boxes of folders.
BACKGROUND
Complainant worked at the agency since 1996 as a warehouse file clerk.
This position required that once a month complainant and other
similarly situated co-workers unload boxes from a truck. In October,
1999, complainant was diagnosed with bipolar affective disorder and
was prescribed medication (Depakote) which required that he �avoid
excessive heat or physical exertion,� because extreme dizziness could
result if complainant were overheated or exhausted. On October 20, 1999,
Complainant's doctor recommended that he be transferred to a position
which did not require over-exertion. On December 7, 1999, the agency
denied complainant's request for a transfer. According to the agency's
report of EEO counseling, a vacant records and analysis clerk position
existed at the agency's Southeastern Program Service Center to which
complainant could have been reassigned. Complainant's supervisor attested
that she denied the transfer request because all positions required some
physical exertion, and by allowing complainant to take breaks when he
became overheated, the supervisor effectively accommodated complainant's
need to avoid excessive heat when he was unloading boxes. Complainant
asserted that when he took breaks, the assistant supervisor would stop
work and stand by him in order to intimidate him into returning to work.
In August, 2000, the agency reassigned complainant to the Southeastern
Program Service Center as a records and analysis clerk.
Following an investigation, complainant requested a hearing but later
withdrew that request and asked for a final agency decision (FAD).
The FAD found no discrimination and this appeal followed. On appeal,
complainant argued that the agency's accommodation was not effective
and that the agency should have reassigned him sooner than August, 2000.
The agency asked that we affirm its FAD.
ANALYSIS
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. � 1630.9;
see generally, EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, No. 915.002
(rev. Oct. 17, 2002) (Guidance).<1>
Reasonable Accommodation
Reasonable accommodation includes any change in the work environment or
the work process that enables a qualified individual with a disability to
perform the essential functions of the position. 29 C.F.R. 1630.2(o).
Possible reasonable accommodations may include job restructuring,
leave, modified schedules, modified policies, and, as a last resort,
reassignment. (Guidance, at 4 (Introduction). While job restructuring
could include modification of marginal job functions, an employer is not
obligated to eliminate any essential function of the position, nor is an
employer required to lower uniform production standards as a reasonable
accommodation. (Guidance, at 8-9 (Reasonable Accommodation). Further,
an employer is not required to provide the specific reasonable
accommodation sought by the employee but may choose among effective
alternatives. (Guidance, at q. 9, 32).
First, we conclude that, where complainant's doctor's explanation
of the required accommodation was ambiguous, the agency's conclusion
that complainant could work until he required a break to cool down,
was reasonable. As seen above, complainant's doctor required that
complainant �avoid excessive heat or physical exertion.� Given this
broad proscription, the agency's instruction that complainant stop
unloading boxes and cool down allowed complainant to do so not when
he became overheated or overly exerted, but prudently, before those
conditions arose. We find the agency's instruction complied with the
doctor's requirement, and was an effective accommodation.
Second, we conclude that complainant did not prove his claim that his
supervisor intimidated him into returning to work when he was on break.
The evidence shows only complainant's attestation that this occurred
and his supervisor's denial. Without more, we conclude that complainant
failed to prove this claim by a preponderance of the evidence.
Third, we conclude that, where upon reassignment complainant appears
to have successfully performed the job of records analysis clerk, his
choice of accommodation (reassignment) was also effective. However,
where two accommodations are effective, the agency need not adopt the
complainant's choice, where its own choice is effective. 29 C.F.R. �
1630.9 (App.); Guidance at q. 9, 32 (�...when there are two or more
effective accommodations, the employer may choose the one that is easier
to provide.�)
Disparate Treatment based on Age, Sex, Race and Reprisal
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). For complainant to prevail, he must first 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; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center .v Hicks, 509 U.S. 502 (1993).
In response to complainant's claim of age, sex, reprisal and race
discrimination, with respect to claims 2 (management tried to intimidate
him regarding breaks) and 3 (dock duty), we find that, to the extent
that these events were adverse, complainant failed to show that other
employees were treated more favorably. The record demonstrates that
management encouraged all employees to strictly adhere to their break
schedules, that all employees were assigned to one week of dock duty
which rotated by alphabetical order, and that none of the employees
were required to unload a truck. We find that complainant failed to
present evidence indicating that, under a disparate treatment analysis,
the agency's actions were motivated by his age, sex, or race. While we
agree that complainant established a prima facie case of reprisal, we
find that the agency articulated legitimate non-discriminatory reasons for
its actions, namely, that it was agency policy to encourage employees to
take timely breaks and dock duty was part of the warehouse file clerk job.
We find that complainant has failed to show that the agency's articulated
reasons were pretext for discrimination.
Hostile Environment Claim
To the extent that complainant makes a claim of hostile work environment
with respect to issue 2, we note that harassment of an employee based
on his race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently patterned or pervasive. McKinney
v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). To prevail on a
harassment claim, a complainant must show that he was subjected to
harassment because of discriminatory factors, here, disability, race, or
reprisal. In assessing allegations of hostile work environment/harassment,
the Commission examines factors such as the frequency of the alleged
discriminatory conduct, its severity, whether it is physically threatening
or humiliating, and if it unreasonably interferes with an employee's work
performance. Harris v. Forklift Systems, Inc., 510 U.S 17 (1993). Usually,
unless the conduct is severe, a single incident or group of isolated
incidents will not be regarded as discriminatory harassment. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
To support his claim of harassment, complainant described actions that he
perceived as hostile by his supervisor which included trying to intimidate
him into going back to work while he was taking a break by looking at
him or verbally telling him to return to work. We find, however, that
the events cited by complainant do not describe illegal harassment but
were within reasonable agency business operations and/or are not severe
and pervasive enough to rise to the level of discriminatory harassment.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record establishes that
discrimination did not occur.
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
___11-24-03_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
_____________________________
1 For purposes of analysis, we assume without finding that complainant
is an individual with a disability.