0120130795
11-19-2015
Zachary K.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zachary K.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130795
Hearing No. 520-2013-0795
Agency No. 200H-0307-2011100466
DECISION
Complainant timely filed an appeal from the Agency's November 6, 2012, final order 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., 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the Equal Employment Opportunity Commission (EEOC) Administrative Judge's (AJ) issuance of a decision without a hearing was proper; (2) whether Complainant established that he was a qualified individual with a disability, and that the Agency denied him a reasonable accommodation; (3) whether Complainant established that he was treated in a disparate manner on the bases of sex and reprisal; and (4) whether Complainant established discriminatory harassment on the bases of age, sex, disability, and reprisal.
BACKGROUND
During the period at issue, Complainant worked as a Management Analyst, GS-0343-11, at the Agency's Regional Office in Buffalo, New York. On November 1, 2010, he contacted an EEO Counselor and subsequently filed a formal EEO complaint on December 7, 2010. Complainant claimed that the Agency had discriminated against him:
1. on the bases of age (over 40) and disability when, on September 28, 2010, his request for reasonable accommodation was denied;
2. on the bases of sex (male) and reprisal for prior EEO activity, he was treated in a disparate manner when:
a) On December 6, 2010, his supervisor (JC) ordered him to stop using his computer;
b) On December 6, 2010, his supervisor (JC) instructed him to take his breaks and lunch at specific times, meaning his breaks should be taken between 9:45 and 10:00 a.m. and 2:15 and 2:30 p.m. and lunch between 11:45 a.m. and 12:15 p.m.; and
3. on the bases of age (over 40), sex (male), reprisal (prior EEO activity), and disability, he was subjected to hostile work environment when:
a) On September 28, 2010, his request for accommodation was denied;
b) On December 3 and 6, 2010, his supervisor (JC) ordered him to stop using his computer;
c) On December 6, 2010, his supervisor (JC) instructed him to take his breaks and lunch at specific times meaning his breaks should be taken between 9:45 and 10:00 a.m. and 2:15 and 2:30 p.m. and lunch between 11:45 a.m. and 12:15 p.m.
The Agency accepted the complaint for investigation, at the conclusion of which the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC AJ. Complainant requested a hearing. Therefore, his case was forwarded to the appropriate EEOC District Office and assigned to an AJ.
On October 18, 2011, the Agency filed a Motion for Summary Judgment. Complainant did not file a response to the Agency's Motion. The AJ granted the Agency's Motion in his decision without a hearing, finding that Complainant had not established discrimination as alleged. The Agency subsequently issued a final order which adopted fully the AJ's decision. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ should not have issued a decision without a hearing. Moreover, Complainant challenges the AJ's findings on the merits. Finally, Complainant stated he has evidence of retaliation and will use it as evidence in a civil action lawsuit if necessary. The Agency did not submit contentions on appeal.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes.
In other words, we are free to accept or reject the AJ's and the Agency's factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (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").
ANALYSIS AND FINDINGS
Contentions on Appeal
We address Complainant's first two contentions on appeal, namely, that the AJ should not have issued a decision without a hearing and Complainant's challenge of the AJ's findings on the merits. With respect to Complainant's third contention on appeal, that is, alleged evidence of retaliation, we note there is no such information in the record regarding the management officials accused of discrimination in the underlying complaint. Nor did Complainant submit such information on appeal, despite the opportunity to do so. We further note that Complainant's claim of retaliatory evidence appears to involve different Agency officials and employment actions than those at issue in this decision. Those matters were considered in EEOC Appeal 0120103409 (Jun. 14, 2012); we decline to revisit them herein.
Issuance of Decision without a Hearing
We now consider whether it was appropriate for the AJ to have issued a decision without a hearing on the record in this case. 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.
In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. This means the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find the record is adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond to the Agency's Motion for Summary Judgment, but did not do so. Thus, we find the AJ's issuance of a decision without a hearing was proper.
Qualified Individual with a Disability
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9. As a threshold matter in a case of disability discrimination under a failure to accommodate theory, the complainant must demonstrate that he is an "individual with a disability."
In order to establish a prima facie case of disability discrimination, Complainant must demonstrate that he: (1) is an "individual with a disability": (2) is "qualified" for the position held or desired; (3) was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. E.g., McMillan v. U.S. Postal Serv., EEOC Appeal No. 0120072556 (Feb. 26, 2009). We will presume, without so finding, that Complainant is an individual with a disability under the Rehabilitation Act.
The record reflects that on September 24, 2010, Complainant, while on medical leave, sent his first level supervisor (S1) an e-mail stating that he was permanently disabled due to a sudden loss of vision caused by a stroke, which left him legally blind. Complainant also indicated to S1 that he was permanently disabled due to his back condition (post-laminectomy syndrome, also known as failed back). In the e-mail, Complainant requested a disability accommodation but stated, "I am not sure what kind of reasonable accommodation I will need..." See ROI, at 115.
S1, also on leave at the time, did not receive Complainant's request for accommodation until September 28, 2010, at which point she spoke to the Human Resource Manager (HRM) who advised S1 as to what medical information was needed to process the reasonable accommodation request. S1 notified Complainant that the medical documentation he submitted was insufficient to make a decision as to what reasonable accommodation was needed or whether he was presently a qualified individual with a disability. She went on to state that without the necessary medical documentation the Agency could not process his request, and included the specific information that was needed from Complainant's doctor.
Complainant responded by e-mail, stating that he was hoping to receive a new contact lens, would be returning to work on October 1, 2010, and would have a medical note from his doctor by then. When Complainant returned to work on October 1, 2010, he provided S1 with a doctor's note stating that Complainant was allowed to return to work wearing his current glasses but no specific medical condition or suggested accommodation was included. At this time, S1 told Complainant to take his time getting back to work as he was still adjusting to new things but reminded him that, in order to move forward on his accommodation request, she needed more specific medical information. Complainant indicated he would provide such information once he talked to his doctor.
Despite not having the requested medical information, on October 19, 2010, S1 provided Complainant an adjustable-height desk, allowed him to sequence his duties, and gave him more non-computer tasks so that he had more opportunities to sit, stand, walk and sequence his tasks throughout the day. On October 23, 2010, the Office of Information Technology (OIT) removed Complainant's computer and replaced it with a dual-monitor computer with a height-adjustable arm, which allowed Complainant to readjust his computer so he would not have to crane his neck. On October 25, 2010, S1 approved a change of tour for Complainant and the next day, she requested that OIT order for Complainant ZOOM magnification software. On October 28, 2010, S1 had voice recognition software installed on Complainant's computer. A few days later, on November 2, 2010, the ZOOM magnification software was installed on Complainant's computer. On November 8, 2010, an ergonomic assessment and training with adjustments to Complainant's workstation was completed.2 Complainant was given a copy of the report on November 16, 2010,
On December 1, 2010, S1 received the required medical documentation from Complainant's doctor stating:
[Complainant's] current job as a Management Analyst requires working with computer and analysis data in the computer most of the time which is almost impossible with his current vision status. He is also now experiencing neck pain because he has to crane his neck to see the computer screen. He is experiencing increased lower back pain because he can't see the computer screen while sitting correctly with his back aligned properly in the chair. I strongly recommend that this highly motivated Veteran be placed in another position in the [Agency] for which he is qualified with reasonable accommodation.
See ROI, at 257.
There exists additional medical documentation in the record wherein Complainant's doctor states, "I strongly feel that no accommodations will allow the [Complainant] to do the essential function of his job as a [M]anagement [A]nalyst at a fully satisfactory level of performance." Id. at 326.
Based on information from Complainant's doctor, we find that Complainant was not a "qualified individual" with a disability under the Rehabilitation Act with respect to his Management Analyst position. However, because Complainant could not be accommodated in his job as a Management Analyst, the Agency may have been required to consider the availability of a reassignment as an accommodation. Reassignment is the reasonable accommodation of "last resort" and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his current position, as is the case here; or (2) all other reasonable accommodations would impose an undue hardship. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002).
To establish entitlement to reassignment, it must be shown that a vacant, funded position existed during the relevant time period or was likely to open up. Id.; see also Shimmin v. Dep't of Homeland Security, EEOC Appeal No. 0120072428 (June 4, 2009) (screener who could not perform duties of position and requested reassignment not qualified under the Rehabilitation Act because he failed to identify a vacant, funded position that met his medical restrictions during relevant time period). Complainant can establish that vacant, funded positions existed by (1) producing evidence of particular vacancies; or (2) showing that he was qualified to perform a job or jobs which existed at the Agency, and there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002).
Upon being put on notice that Complainant could not be accommodated effectively in his Management Analyst position, the Agency conducted a nationwide search for a position into which Complainant could be reassigned. See ROI, at 161. On April 27, 2011, the HRM informed S1 that the Human Resources Office had contacted the Agency's Benefits Administration, Health Administration, and National Cemetery Services to determine if any vacancies existed now or were anticipated within the next 30 days with a reply date of April 22, 2011, and learned that no such vacancies existed. See ROI, Agency's Motion for Summary Judgment at Tab G.
Upon review, there is no evidence in the record indicating there was a vacant, funded position for which Complainant was qualified and into which he could have been reassigned. Therefore, we find that Complainant did not establish he is a qualified individual with a disability entitled to coverage under the Rehabilitation Act.
Disparate Treatment
Complainant alleges disparate treatment discrimination when his supervisor ordered him to stop using his computer on December 6, 2010, and when he was instructed to take his morning and afternoon breaks, as well as his lunch, at specific times. In the absence of direct evidence of discrimination, as is the case here, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We assume, for purposes of analysis, Complainant has established prima facie cases of sex and reprisal discrimination.
We now examine whether the Agency stated legitimate, nondiscriminatory reasons for its actions. Here, the Agency asserted that Complainant was instructed to stop using his computer for work-related activities because his doctor indicated that Complainant's computer usage caused him neck pain, because he had to crane his neck to see the computer screen which in turn resulted in back pain, as he could not see the computer screen when his back was aligned properly in the chair. The Agency also stated that this restriction was put in place to ensure that Complainant would not injure himself. Further, the Agency stated that Complainant was required to take his lunch, morning, and afternoon breaks at specific times so that S1 could efficiently monitor Complainant's computer usage to ensure compliance with the directive that he not use his computer for work-related activities. We find that the Agency has met its burden to state legitimate, nondiscriminatory reasons for its actions.
Complainant must now present evidence showing that the Agency's stated reasons are pretexts for discrimination based on his sex and prior EEO activity. In an attempt to meet this burden of proof, Complainant stated that no other employees were subjected to computer restrictions or break monitoring. That may be so, but because of the Agency's concern for Complainant's health based on information from Complainant's own doctor, the totality of the evidence does not persuade us the Agency's stated reasons are unworthy of credence or that its actions were based on a discriminatory motive. Thus, we find Complainant did not establish he was treated in a disparate manner based on his sex and reprisal.
Harassment
Complainant claimed that the Agency subjected him to harassment on the bases of age, sex, disability, and reprisal, and alleges that all of the actions at issue in this decision constitute discriminatory harassment. However, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment fails. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of harassment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000). Therefore, we find that Complainant did not establish discriminatory harassment on the bases of age, sex, disability, or reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's issuance of a decision without a hearing was proper. We further find that Complainant did not establish that he was a qualified individual with a disability entitled to coverage under the Rehabilitation Act and was denied a reasonable accommodation, that he was treated in a disparate manner based on sex and reprisal, or that he was subjected to discriminatory harassment on the bases of age, sex, disability, and reprisal. Accordingly, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
Nov. 19, 2015
__________________
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 ergonomic assessment was ordered after Complainant expressed dissatisfaction with some of the accommodations provided. See ROI, at 160.
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