0120111248
03-22-2013
Alvis L. Hudson, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Administration for Children and Families), Agency.
Alvis L. Hudson,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Administration for Children and Families),
Agency.
Appeal No. 0120111248
Hearing No. 440-2009-00065X & 440-2009-0095X
Agency No. HHS-ACF-0018-2008 & HHS-ACF-0092-2008
DECISION
On December 8, 2010, Complainant timely filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's November 5, 2010, final orders concerning his equal employment opportunity (EEO) complaints 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Auditor, GS-12, at the Agency's Administration for Children and Families in Chicago, IL.
On June 30, 2008, and August 22, 2008, Complainant filed EEO complaints alleging that he was discriminated against based on his race (African-American), age (45 and 46), disability (diabetes, high blood pressure, sleep apnea, high cholesterol, and obesity), and reprisal for prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act when the Agency:
1. Terminated his detail with the its Administration for Children and Families Region V Office of Grants Management (Grants) in November 2007;
2. Denied him training during the above detail and after he returned to the Office of Audit (Audit);
after returning to Audit the Agency:
3. Gave him work assignments that were above his grade level and not in his position description;
4. Changed his duty hours;
5. Did not give him a 2007 annual performance appraisal;
6. Did not provide him a laptop computer;
7. Did not reassign him (also while he was on detail);
8. Harassed him by forcing him to travel on Sundays from January 2008 through April 2008;
9. On February 15, 2008, his flexiplace agreement was terminated, and
was discriminated against based on his age (46), sex (male), and reprisal when:
10. He was issued a letter of reprimand dated August 14, 2008; and
11. Placed on leave restriction and denied his August 15, 2008, leave request until he provided acceptable medical documentation.
Following separate investigations, Complainant made requests for hearings before an EEOC Administrative Judge (AJ). The EEOC joined the two complaints. After both parties submitted motions for a decision without a hearing the AJ issued a decision without a hearing procedurally dismissing issue 9, and finding no discrimination on the remaining claims. On each complaint the Agency then issued a separate final order adopting the AJ's decision.1
On appeal, Complainant makes no argument, but submits copies of the motions and argument he made to the AJ. The Agency submits the record, with no additional argument.
In May 2007, the parties entered into a settlement agreement which closed two of Complainant's EEO complaints. They indicated therein that the intention was to start over with a "clean slate." The Agency agreed to detail Complainant for up to 120 days in Grants in Chicago, Illinois, and for his first line supervisor there to handle his appraisal. The parties agreed that if either Complainant or Grants determined the detail was not working out for any reason, either may terminate the detail, and that it may be renewed for another 120 days and become permanent if Complainant and Grants mutually agreed. Under the settlement agreement, if Grants elected to make the position permanent, but did not have a vacant full time equivalent (FTE) at that time, then Audit would transfer a FTE to Grants.
Pursuant to the settlement agreement, Complainant was detailed on May 14, 2007, to Grants, primarily to do audit and financial work. When the 120 days were up, the detail was renewed. It was subsequently terminated by Grants effective November 19, 2007.
The AJ found the following: on issue 1 the Agency did not breach the settlement agreement because it provided that either party could terminate the detail. On issue 2 Complainant missed the annual meeting/training for auditors in September 2007 because he was on the detail. Complainant received on-the-job training. On issue 3 Complainant's assignments were within the scope of his position description and were similar in scope to his previous assignments and normal duties. On issue 4 Complainant continued to work on his compressed work schedule. On issue 5 while Complainant should have received his 2007 performance appraisal, he was not harmed because he still got his within grade increase. On issue 6 Complainant was not assigned a laptop because none were available, but he was loaned one whenever he had to travel for an audit. On issue 7 the AJ recounted the Agency's explanation that the Audit first line supervisor did not have authority to permanently reassign Complainant, and after the detail Audit did not have the resources to find another supervisor who needed another employee and was willing to accept Complainant. On issue 8 the AJ found Complainant did not show he was required to travel on Sundays. The AJ dismissed issue 9 because Complainant filed a grievance on flexiplace, making an election under the negotiated grievance procedure to pursue this claim in grievance process. On issue 10 the AJ found that Complainant was reprimanded because he did not complete his work and had the tools to do so. On issue 11 the AJ found that Complainant was placed on leave restriction because he was not completing his assignments, and his leave request was initially denied because he did not provide adequate documentation to support the request. The AJ found that the leave request was later approved, and Complainant was not harmed.
ANALYSIS AND FINDINGS
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.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
The AJ found that Complainant did not establish a prima facie case of reprisal discrimination either because his prior EEO activity occurred long before the alleged incidents of reprisal or the officials who took the alleged discriminatory actions were not aware of the prior EEO activity.
The AJ found that the termination of the detail occurred more than four years after Complainant's first complaint and 18 months after his second complaint were filed, and that the Grants supervisor (African American male) was not the responsible management official in those complaints. The record shows, however, that the Grants supervisor was aware that Complainant was detailed to Grants as a result of a settlement agreement in May 2007 which he was aware closed a prior EEO complaint. Entering into settlement negotiations and a settlement agreement which closes EEO complaints is a continuation of EEO activity. Likewise, on December 7, 2007, Complainant sent an email, which he copied to his Audit team leader (African American female) and Audit first line supervisor (African American female) that he would like to file an EEO complaint regarding the termination of his detail. In February 2008 the Audit first line supervisor was involved in the unsuccessful mediation of complaint HHS-ACF-0018-2008. Report of Investigation (ROI) 1, at 223, 323. Because all the allegations of discrimination involved actions by at least one of the above officials after they were aware of the above more recent EEO activity, we find that the EEO activity occurred in sufficient proximity to the alleged acts of discrimination to create a prima facie case of reprisal discrimination.
The AJ found that Complainant failed to prove he had a disability. We will assume without finding, for purposes of analysis only, that Complainant is an individual with a disability. The AJ found that Complainant established a prima facie case of age discrimination, and suggested he also established prima facie cases of race and sex discrimination. For purposes of analysis, we agree.
On issue 1 we agree with the AJ's finding that the termination of the detail did not breach the settlement agreement. Complainant also contended, however, that the termination of his detail was discriminatory. The Grants supervisor stated that he did not offer Complainant a permanent position at the end of his initial 120 day detail because he had some reservations about his performance, i.e., he had difficulty reaching Complainant on the two days a week he worked at home on flexiplace, and Complainant complained about not receiving training even though senior staff was spending significant time instructing him and assisting him on his assignments. The Grants supervisor stated that after he extended Complainant's detail, he continued having a challenging time reaching Complainant when he was working at home.
The Grants supervisor explained that he terminated Complainant's detail effective November 19, 2007, because Complainant just stopped working for about three weeks during October 2007 through November 1, 2007, and stopped working on his assignments. He suggested that when he terminated the detail Complainant was not completing work. On Wednesday, October 10, 2007, Complainant emailed the Grants supervisor to advise that because his blood pressure medication was becoming less effectiveness, his doctor was experimenting with new medications, one of which caused a severe reaction resulting in an emergency room visit the prior weekend, and he was still recovering. He wrote that at the end of the week he was going to undergo an invasive outpatient medical procedure requiring he be under anesthesia, and he was asking for annual leave on Friday. Complainant wrote he would be "alright." The Grants supervisor received a slip from a physician excusing Complainant from work from October 5, 2007 through October 16, 2007, and stating he could return on October 17, 2007, with no restrictions.
The Grants supervisor stated that during the time Complainant stopped working, he submitted 12 requests for sick and annual leave. He wrote that he called Complainant several times at his home to find out what was going on, and Complainant would indicate he needed to take annual or sick leave.2 The Grants supervisor stated that he told Complainant that if he was sick he should take sick leave but if he was not sick he needed him in the office working on assignments. He wrote Complainant would send emails during the course of the day indicating he was on sick or annual leave, and in one email indicated he was working at home during his flexiplace day by checking his email. He wrote Complainant never specifically told him what was wrong, a likely reference to their conversations, and he kept trying to stay in touch with Complainant. He noted that under the settlement agreement, he was free to terminate the detail, and he determined it was not working out successfully as he hoped.
We find that the Grants supervisor articulated legitimate, nondiscriminatory reasons for terminating Complainant's detail, as outlined above. Further, the Grants supervisor shares Complainant's protected groups of African American male, making it less likely that he was motivated by these protected bases. Moreover, while he was aware that Complainant entered into an EEO settlement agreement, he expressed no reservations about Complainant being assigned to him and had every incentive to make the detail work because he was short staffed, and agreed to extend the detail once. This all makes it less likely the Grants supervisor was motivated by reprisal.
Under the Commission's regulations, an agency is required to make reasonable accommodation of 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), 1630.2(p). Here, Complainant asked for the reasonable accommodation of leave, which contained the implicit request that it be granted without an adverse action being taken. We find that the Agency did not violate the Rehabilitation Act when it reassigned Complainant. The medical excuses he submitted were up through October 16, 2012, but he continued his work stoppage up through at least November 1, 2012, and the Grants supervisor suggested Complainant got little work done on the detail thereafter. While Complainant indicated that he offered to give his Grants supervisor documentation of his two emergency room visits and his outpatient medical procedure, it is unlikely this would have shed light on why he continued to be absent. Further, the Grants supervisor had a difficult time reaching Complainant at home when he was on flexiplace, creating trust issues. Complainant took annual leave when he had a significant sick leave balance, raising further questions on the reasons he was unavailable to work. Given these facts, we find Complainant has not shown he was reassigned because he took leave due to his disability. Moreover, Complainant did not show he was disparately treated based on disability or any other basis when he was reassigned. He failed to prove discrimination on issue 1.
We agree with the AJ's findings that there is no discrimination regarding issues 2, 3, 4, 6, 8, 10 and 11, for the reasons found by the AJ.
On issue 5, we agree with the AJ's assessment that Complainant should have gotten a performance appraisal in 2007. The Grants supervisor provided an email showing he was advised by the Agency's Office of Management Resources not do an appraisal because Complainant officially remained in Audit while on detail, and those performance standards applied. He stated he understood Audit would do the appraisal and he would provide input. Complainant's Audit first line supervisor explained she did not give Complainant an evaluation because after he returned he was not under her supervision for 90 days.
Based on the record, we find Complainant did not get a 2007 appraisal because there was a conflict between Grants and Audits on who was responsible to do it, not discrimination. Significantly, effective January 6, 2008, the Agency granted Complainant a within grade increase, with the remark that his work performance was at an acceptable level of competence, undermining discrimination as a motive for not giving him a performance appraisal.
On the issue 7 disparate treatment claim, the Agency gave legitimate, nondiscriminatory reasons for not reassigning Complainant, as recounted above, and Complainant failed to show pretext. Reassignment to a vacant position is also a form of reasonable accommodation under the Rehabilitation Act. 29 C.F.R. � 1630.2(o)(2)(ii). The record does not show, however, that Complainant asked for a reassignment as a form of reasonable accommodation. He indicated that he could do the job, but was disparately not being provided the adequate tools or training to do so. Moreover, Complainant has not pointed to a funded vacant position for which he could have performed the essential functions with or without reasonable accommodation, and there is no evidence of one in the record. Hampton v. United States Postal Service, EEOC Appeal No. 01986308 (July 31, 2002).
We agree with the AJ's dismissal of issue 9, flexiplace, because Complainant filed a grievance on the matter in a negotiated grievance procedure that permits allegations of discrimination prior to filing his EEO complaint. 29 C.F.R. � 1614.301(a).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final orders.
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
March 22, 2013
__________________
Date
1 Prior to the AJ decision which the Agency adopted, the AJ dismissed two issues, one for being a duplicate claim, and one for failure to state a claim. As Complainant does not make any appeal argument regarding these matters, we will not address them.
2 In August 2008, Complainant wrote he had a balance of 170 hours of sick leave and over 200 hours of annual leave.
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0120111248
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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