0120152255
05-25-2017
Shanta M.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shanta M.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120152255
Hearing No. 520-2015-00027X
Agency No. DOT-2012-24487-FAA-01
DECISION
JURISDICTION
On June 16, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 19, 2015 final order concerning her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst at the Agency's New York Aircraft Certification Office in Westbury, New York. On February 2012, Complainant requested a reasonable accommodation. During the processing of her request, on August 4, 2012, the Manager emailed Complainant and copied Union representatives, management, and the Labor Relations Specialist concerning the reasonable accommodation request and the "Article 8" meeting.
On April 6, 2012, Complainant contacted an EEO Counselor and filed a formal EEO complaint on July 25, 2012, alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (dark complexion), and reprisal for prior protected EEO activity under the Rehabilitation Act2 when, on or about April 4, 2012, after filing her prior EEO complaint, that the Manager told her in an email that he sent her and numerous other employees that there was no reason to discuss anything regarding her working conditions if she filed another EEO complaint; that she could get disciplined for not participating in meetings with her supervisor (Supervisor), even if she is not participating because of her EEO complaint; and the Manager said her EEO activity makes him and management take hostile positions towards her.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On January 8, 2015, the AJ issued her notice of intent to issue a decision without a hearing. The Agency responded to the AJ's notice on January 26, 2015, stating its support of the AJ's position. The AJ issued a decision without a hearing finding no discrimination.
The AJ issued a statement of undisputed material facts. The AJ noted that the Manager's last day was April 4, 2012, and he would not be able to brief the incoming acting manager (Acting Manager). As a result, he sent the email to the Acting Manager, as well as others in management and Complainant's representatives from the Union who were aware of the reasonable accommodation request. The AJ quoted the email at issue where the Manager noted that:
It's a shame that the Article 8 Problem Solving session was ineffective, but its success from the start was questionable due to the lack of definition of the problems and the differences of opinion. An Article 8 requires a collaborative effort by all parties and is essential to have very well denied objectives; otherwise there is a chance to find a solution both sides can live with. What is even more concerning is the fact that threats were used during the process, which is only going to create a hostile separation of sides instead of working to find common ground to develop a foundation of collaboration.
The AJ also noted that in March 2012, the Supervisor emailed Complainant and the Union Representative about scheduling a meeting about Complainant's reasonable accommodation request. The Union Representative responded to the email and stating that Complainant did not have to be at the meeting and that "it could appear retaliatory if you ordered her to attend." Management asked that Complainant provide medical documentation. In making the request for the documentation, the Supervisor told Complainant in an email that "the reasonable accommodation determination process is intended to be an interactive process between manager and employee. Therefore, submission of current and complete information and active cooperation in the interactive process is in [Complainant's] best interest, as a failure to do so may result in denial of [Complainant's] request." A second email was sent to Complainant asking her to engage in "an interactive dialog" so that the Agency may provide Complainant with a reasonable accommodation. The Agency issued Complainant a memo regarding her reasonable accommodation request on April 4, 2012. The memo stated that Complainant was a qualified individual with a disability and that Complainant was invited to engage in the interactive process to determine a reasonable accommodation that would enable Complainant to perform the duties of her job. However, the memo indicated that Complainant chose not to engage in the process but received an accommodation. Finally, the AJ stated that Complainant was not disciplined for not attending meetings with management regarding the reasonable accommodation process.
Based on these undisputed facts, the AJ concluded that Complainant failed to establish a prima facie case of discrimination based on race, color or sex. The AJ noted that Complainant did not provide any evidence to show that the alleged discrimination occurred because of these protected bases. Further, the AJ held that the Agency provided legitimate, nondiscriminatory reasons for its actions. As to the email, the Manager indicated he copied the union and its representatives regarding Complainant's request for a reasonable accommodation so that everyone was apprised of the Agency's ongoing activities. In response to the threats, the AJ held that Complainant experienced no loss of compensation or that her terms or conditions of employment were adversely changed. The AJ held that Complainant was not counseled or disciplined for her lack of participation in the interactive process and the Agency provided Complainant with an accommodation regardless of her lack of engagement in the process.
The AJ turned to Complainant's claim of retaliation. The AJ held that Complainant had engaged in EEO activity in 2011 and that the Manager and Supervisor were aware of her prior EEO activity. The AJ found, however that Complainant did not show that she was subjected to adverse action or that the actions took place because of her participation in her prior EEO complaint. Further, the AJ held that the Agency provided legitimate, nondiscriminatory reasons for its actions. As for the email, the AJ held that the Manager sent the email to keep management apprised of Complainant's request for a reasonable accommodation and how the Article 8 problem solving was unsuccessful. Further, the Manager's statement that he was disappointed that the process was unsuccessful was not sufficient to rise to the level of an adverse employment action. Therefore, the AJ concluded that Complainant failed to show she had been subjected to unlawful retaliation.
The Agency's final action implemented the AJ's decision. This appeal followed.
ANALYSIS AND FINDINGS
Summary Judgment
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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 holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment - Race, Sex, and Color
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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 Ctr. v. Hicks, 509 U.S. 502 (1993).
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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency has provided legitimate, nondiscriminatory reasons for its actions. As for the April 4, 2012 email, we find that management did not engage in the activity as stated by Complainant in her complaint. As noted above, the email was clearly providing information to the Acting Manager and the individuals involved in the reasonable accommodation process. Furthermore, the Union Representative, not the Supervisor, noted that requiring Complainant to attend meetings would be seen as retaliatory. The Supervisor and the Manager noted that Complainant's participation in the interactive process is helpful in the reasonable accommodation process. Furthermore, the record is devoid of any evidence that Complainant was threatened by the Supervisor or the Manager or that she was disciplined for not attending meetings. Finally, as to the alleged hostility, again, Complainant provided no evidence and management denied any such claim. Therefore, we conclude that the Agency provided legitimate, non-discriminatory reasons for its action. In addition, Complainant provided no evidence to support her bald assertion that the Agency's actions constituted pretext for discrimination based on race, color and/or sex.
Disparate Treatment - Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) they engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, they were subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept 25, 2000).
Upon review of the record, we find that Complainant requested a reasonable accommodation3 in February 2012, and that the Agency was aware of such protected activity. Complainant must then show she was subjected to an adverse action. We note that statutory retaliation clauses prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter Complainant or others from engaging in protected activity. Upon review of the emails and evidence provided in the record, we find that Complainant has not shown that she was subjected to actions which would have deterred her or others from engaging in protected activity. Therefore, we find that Complainant has not shown that the alleged actions constituted unlawful retaliation.
CONCLUSION
Accordingly, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission AFFIRMS the Agency's final action implementing the AJ's decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 25, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The record indicated that Complainant requested a reasonable accommodation in February 2012, pursuant to Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
3 A request for reasonable accommodation of a disability constitutes protected activity under the ADA, and therefore retaliation for such requests is unlawful. See EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice Number 915.004, at Example 9 (Aug. 25, 2016) citing Solomon v. Vilsack, 763 F.3d 1, 15 n.6 (D.C. Cir. 2014) (citing rulings from every federal judicial circuit holding that requests for reasonable accommodation are protected activity).
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