01a40930
08-16-2005
Ronald L. Bell, Complainant, v. Andrew S. Natsios, Administrator, Agency for International Development (AID), Agency.
Ronald L. Bell v. Agency for International Development
01A40930
August 16, 2005
.
Ronald L. Bell,
Complainant,
v.
Andrew S. Natsios,
Administrator,
Agency for International Development (AID),
Agency.
Appeal No. 01A40930
Agency No. EOP-99-06
Hearing No. 100-A1-7439X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that at all relevant times, complainant was a
Program Analyst, GS-232-11, at the agency's Office of Budget, Bureau for
Management in Washington, D.C. Complainant filed a formal EEO complaint
on September 2, 2003, alleging that the agency discriminated against
him on the bases of race (African-American), color (dark black), sex
(male), disability,<0> and age (D.O.B. 10/14/47) when:
(1) On February 10, 1998, a letter of reprimand dated June 25, 1997,
was placed in his official personnel file;
He was charged AWOL nineteen unspecified times in 1997, and then again
on January 7, 1998, February 2, 1998, February 11, 1998, and April 7,
1998; and
On April 14, 1998, he was suspended without pay for 14 days.
The record indicates that complainant raised additional issues in his
complaint. The agency initially accepted issue (3) as described above,
but dismissed the remaining issues on the basis of untimeliness. At the
conclusion of the investigation, complainant was provided a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ).<0>
The first AJ assigned to the case held that the agency had improperly
dismissed issues (1) and (2) as described herein. A second AJ ultimately
issued a decision without a hearing, reaching the merits of the case
concerning issue (3), but finding that issues (1) and (2) were in fact,
untimely and properly dismissed. The AJ initially found that as issue
(1) occurred on February 10, 1998, complainant's May 8,1998 EEO counselor
contact was untimely. Additionally, the AJ found that complainant's
June 5, 1998 EEO counselor contact concerning issue (2) was untimely.
The AJ further noted that she found unpersuasive complainant's argument
that the law of the case mandated that these incidents be considered a
continuing violation. The AJ reasoned that the Supreme Court's decision
in National Railroad Passenger Corp v. Morgan, 536 U.S. 101 (June 10,
2002) changed the law concerning the theory of continuing violation.
As to issue (3), the AJ found that complainant failed to establish
a prima facie case of disparate treatment because he pointed to no
similarly situated individual, outside his protected classes, with
similar time and attendance problems, who was not suspended. The AJ
found that complainant also failed to provide other evidence that would
permit an inference of discrimination to be drawn. The AJ additionally
found that, assuming arguendo that complainant established a prima facie
case of disparate treatment, the agency has articulated a legitimate,
nondiscriminatory reason for its action; namely, complainant was suspended
because he was repeatedly late to work without notice, he slept on the
job, took unscheduled leave, and refused to follow the agency's time
and attendance procedures. The AJ found that complainant presented no
evidence that the agency's reason was a pretext for discrimination.
The AJ also noted that complainant claimed he was denied a reasonable
accommodation for his alcoholism when the agency suspended him because
it did not follow its own internal regulations and offer him a choice
between treatment and suspension. The AJ found, however, that the
agency was not obligated to offer him a choice between treatment and
suspension because an employee must ask for a reasonable accommodation,
and complainant did not do so. The AJ found no discrimination on any
alleged basis. The agency's final order implemented the AJ's decision.
Complainant makes no argument on appeal. In response, the agency restates
the position it took in its final order, and requests that we affirm its
final order. As an initial matter we note that, 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).
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, issuing a decision
without a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition.
Initially, we concur with the AJ's finding that issues (1) and (2) are
discrete acts which cannot be considered to be part of a continuing
violation claim because they were untimely brought to the attention
of an EEO counselor. For purposes of continuing violation claims, the
Supreme Court in Morgan made an important distinction between discrete
acts (acts taken by the agency against a complainant which are easily
identifiable employment actions) and non-discrete acts. The Court
found that an employer may be held liable for all acts constituting
harassment as long as one act, discrete or non-discrete, contributing
to the alleged harassment occurred within the applicable filing period.
The Court further found that in terms of relief, a complainant cannot
recover damages for discrete acts that fall outside the filing period.
Here, we find that the incidents in issues (1) and (2) are discrete
acts which are beyond the applicable time limit for contacting an EEO
Counselor. We will consider them as background evidence in support of
complainant's harassment claim.
Turning to complainant's disparate treatment claim, we also agree with the
AJ that complainant failed to proffer evidence, comparative or otherwise,
from which a reasonable fact finder could draw an inference of race,
color, sex, disability or age- based discrimination. Complainant does
not deny that he had a history of time and attendance problems nor does
he present sufficient evidence that anyone else, similarly situated to
him, with the severity of the problems he had was treated more favorably
than he was. As such, we conclude that complainant did not establish
a prima facie case of discrimination on any of his alleged bases.
Further, we conclude that a prima facie case of harassment is precluded
based on our finding that complainant failed to establish that any of
the actions taken by the agency were motivated by his protected bases.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(September 21, 2000).
We also concur with the AJ's conclusion that complainant did not request
reasonable accommodation. Complainant contends in his affidavit that
he specifically discussed his disability and its effects on his time
and attendance with management. Complainant's first-level supervisor
concedes as much. He states that for much of the time that complainant
had time and attendance problems, he did not admit that his alcoholism
was the cause. Report of Investigation (ROI), at F3. He states, however,
that in January 1998 complainant told him that the cause of his time and
attendance problems was his alcoholism. Id. Additionally, the Office
Director states that complainant acknowledged his drinking problem �late
in the process.� ROI, at F4.
The Commission has published extensive guidance on reasonable
accommodation. It is well settled Commission policy that a request for
reasonable accommodation does not have to be in writing, does not have
to use the magic words �reasonable accommodation,� and can come from
someone other than the individual who needs it. See Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, Questions 1-3, (rev. Oct. 17, 2002). However, when
requesting accommodation, an individual or his/her representative must
let the agency know that the individual needs an adjustment or change
at work for a reason related to a medical condition. Id. at Question 1.
In the instant case, we concur with the AJ that complainant did not make
a request for accommodation. The record establishes that management had
known for some time that complainant had a drinking problem although
complainant did not admit to it until early 1998. The record further
establishes that when confronted with finally being disciplined for his
time and attendance problems, complainant stated that his drinking was the
cause of his problems. However, the record also clearly establishes that
complainant never requested an adjustment or a change at work because of
his drinking, and complainant does not contend that he did. He simply
conceded that his drinking problem, as opposed to the traffic excuses
he had been using, was the cause of his time and attendance problems.
As a result, we decline to find that complainant requested accommodation
either before or after his conduct problems occurred. See The Americans
with Disabilities Act and Psychiatric Disabilities, Question 31, (March
25, 1997).
In his affidavit in support of this complaint, complainant avers that
the agency had some obligation to �help� him. Commission guidance
provides that an agency should initiate the reasonable accommodation
process without being asked if the agency: (1) knows that the employee
has a disability; (2) knows, or has reason to know, that the employee
is experiencing work place problems because of the disability, and (3)
knows, or has reason to know, that the disability prevents the employee
from requesting reasonable accommodation. See Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act, Question 40, (rev. Oct. 17, 2002). There is no
evidence to support a finding that the agency knew, or had reason to
know, that complainant's drinking problem prevented him from requesting
accommodation, nor is there any evidence to suggest that the drinking
problem did, in fact, prevent him from seeking assistance.
For the reasons stated herein, we conclude that there was no genuine
issue of material fact in dispute. As such, the AJ's issuance of
a decision without a hearing was appropriate. Upon careful review
of the record, we discern no basis to disturb the AJ's finding of no
discrimination. Accordingly, the Commission AFFIRMS the agency's final
order.
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 16, 2005
__________________
Date
0 1Complainant indicates that his disability is alcoholism, and that it
impairs his ability to perceive, walk, and drive a car.
0 2The Commission cannot ascertain why the agency did not process this
as a mixed case complaint pursuant to 29 C.F.R. � 1614.302, but as
complainant does not make any argument on appeal, and the case has been
firmly entrenched in the EEO process for over seven years, we decline
to address the issue herein.