0120080378
01-12-2011
Bert Berfond, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.
Bert Berfond,
Complainant,
v.
Paul F. Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120080378
Hearing No. 120-2004-00113X; 160-2003-08279X
Agency No. GSA-R02-2002-0015; GSA-R02-2003-0004
DECISION
On October 24, 2007, Complainant filed an appeal from the Agency’s
August 29, 2007, final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of 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 deems
the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency’s final
order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Property Manager in the Agency’s Public Buildings Service
(PBS)/Property Management Division in New York, New York. On May 21,
2002, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of disability, age (67), and in
reprisal for prior protected EEO activity when:
1. He was subjected to harassment from February 2002 to November 2002
in the form of work assignments, counseling notices, and disparaging
comments by his supervisor (S1).
On January 28, 2003, Complainant filed a second EEO complaint alleging
that the Agency subjected him to a hostile work environment on the basis
of disability, age (67), and in reprisal for prior EEO activity when:
2. He was denied several requests for reasonable accommodations to
perform his job, although he submitted several medical notes describing
his limitations. The latest medical documentation describing his
limitations was dated November 7, 2002;
3. On November 26, 2002, he was issued a proposed Notice of Removal; and,
4. As a result of being suspended for two weeks, he learned that he was
ineligible for a performance award scheduled for distribution in Fiscal
Year 2003.
Additionally, Complainant alleged that the Agency discriminated against
him on the basis of age (67), disability, and in reprisal for prior
protected EEO activity when:
5. He was suspended for two weeks, from July 21, 2002 to August 3, 2002.
The Agency dismissed claim (5) pursuant to 29 C.F.R. § 1614.107(a)(2) for
untimely EEO Counselor contact. At the conclusion of the investigation,
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
Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on May 10 and 11, 2004 and July 7, 2004. On July
23, 2007, the AJ issued her decision.
Initially, the AJ determined that claim (3) concerned a proposed
adverse action and ordinarily should be dismissed pursuant to 29
C.F.R. 1614.107(a)(5). However, in the instant case, Complainant alleged
that the manner in which the Notice was issued was discriminatory.
Accordingly, the AJ decided that claim (3) would be considered as part of
Complainant’s hostile work environment claim. As to claims (4) and (5),
the AJ concluded that Complainant had raised these claims in a negotiated
grievance procedure that permitted allegations of discrimination.
As a result, the AJ dismissed these claims pursuant to 29 C.F.R. §
1614.301(a).
Next, as to claim (2), the AJ determined that Complainant is an individual
with a disability and assumed arguendo that he is a qualified individual
with a disability under the Rehabilitation Act. The AJ determined,
however, that Complainant failed to establish that his requests
for accommodation were denied. The AJ found that Complainant’s
own testimony was conflicted as to whether he requested or needed an
accommodation. The AJ found that Complainant testified that he asked
S1 for an accommodation and that S1 told him that he was assigned the
mechanical contract which required him to walk around the site, climb
ladders, and go into tight spaces. Further, Complainant testified that
S1 took away his duties and left him only responsible for supervising
the front desk. In addition, he testified that he never asked for an
accommodation and that he could perform the position duties, but just
could not climb ladders or crawl into fight spaces. Thus, the AJ found
that Complainant’s own testimony was unclear as to what, if any,
accommodation he sought.
Furthermore, the AJ concluded that Complainant was accommodated by being
given a temporary building management assignment that could be performed
at a desk rather than in the field and he was not required to perform
the physical duties of the position. In addition, the AJ determined
that the Agency attempted to engage in the interactive process with
Complainant to ascertain what his restrictions were and what, if any,
accommodations he needed. From July 2001 through November 2002, the
Agency made numerous requests for medical documentation and attempted to
clarify conflicting or inadequate information. Many of Complainant’s
medical documentation indicated that he had no restrictions; however,
management sent follow-up requests to Complainant’s doctors in light
of management’s observations of Complainant frequently falling asleep
and his walking difficulties. The responses from Complainant’s doctors
stated that he was fully capable of performing the duties of his position.
In April and May 2002, Complainant’s doctors indicated that
Complainant had suffered a myocardial infarction and should only perform
sedentary work. The Agency requested additional information regarding
Complainant’s restrictions because the submitted statements did not
describe with specificity what his limitations were and how long they
would last. Complainant submitted documentation stating that he could not
climb ladders or lift over 10 pounds and his condition should be recovered
by September 1, 2002. A May 23, 2002 report from one of Complainant’s
doctors stated that Complainant could return to work by September 1,
2002, could do sedentary work, but could not climb ladders or lift over 10
pounds. A note dated September 10, 2002, indicated that Complainant could
return to work while a November 7, 2002 note from another doctor stated
that Complainant could not climb ladders or lift more than 10 pounds.
The AJ determined that while the Agency was attempting to ascertain what
limitations Complainant may have had, the Agency assigned him a desk
job which did not require walking or climbing ladders. As a result,
the AJ concluded that the Agency fulfilled its obligation to engage
in the interactive process and attempted to clarify what restrictions
Complainant might have and what accommodation he might need.
Next, the AJ determined that Complainant’s hostile work environment
claim included the following incidents: Complainant was issued
a letter of counseling on February 21, 2002; S1 cursed at him and
mistreated him; he was given a suspension notice and removal notice in
a harassing manner; S1 made a comment to another co-worker about him;
and S1 showed his EEO complaint to his co-workers. Complainant also
alleged that S1’s influenced his co-workers to complain about him and
to stop talking to him. Finally, he contended that the various medical
documentation requests were harassment. The AJ first assumed arguendo
that Complainant had established a prima facie case of discriminatory
hostile work environment. The AJ then determined that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions.
As to the letter of counseling, the AJ found that S1, and other
supervisors and co-workers, had all observed Complainant sleeping at his
desk on numerous occasions and documented these incidents. Complainant
submitted no evidence rebutting the Agency’s observations. The AJ
concluded that the evidence established that S1 had a legitimate basis
to issue Complainant a letter of counseling concerning this problem.
As to the S1’s alleged mistreatment, the AJ determined that while
it may have been inappropriate for S1 to have cursed at Complainant,
he explained why he was angry at Complainant and later apologized.
Further, as to S1’s comments to Complainant’s co-worker, the AJ
determined that the record was not clear as to whether S1 actually
made the derogatory comments in question. The co-worker testified that
while he was demonstrating to Complainant how to do work on a computer
system, S1 may have said that he had already told Complainant and that
Complainant was not going to remember the instructions anyway. The AJ
concluded that even assuming S1 made the comments; such conduct fails
to constitute discriminatory harassment.
Regarding the Notice of Termination, the AJ determined that the substance
of Complainant’s claim was that he was given the Notice on the day
before Thanksgiving without having a union representative present.
He argued that this was done to ruin his Thanksgiving weekend and cause
him stress. The AJ found that there was no evidence that the manner
in which Complainant was given the Notice of Termination was designed
to harass him. Further, the AJ determined that whether or not he was
given the notice without union representation is a union issue and not
within the EEOC’s regulations.
In regard to Complainant’s allegation that S1 showed his co-workers
Complainant’s EEO complaint, the AJ determined that based on the
record, this allegation was without merit. Complainant’s co-workers
testified that Complainant left a letter addressed to the Agency’s
EEO Office on a copier or printer and that was how they learned of it.
Further, the record did not support Complainant’s contention that S1
influenced Complainant’s co-workers to complain about him and to stop
talking to him. The AJ found that S1 told Complainant’s co-workers
to document in writing any complaints they had about Complainant after
first receiving multiple verbal complaints.
Finally, in regard to the Agency’s requests for medical documentation,
the AJ determined that the medical documentation which Complainant
initially submitted was often contradictory and did not state clearly
what, if any, restrictions he had. The Agency continued to request
medical documentation in an attempt to have the doctors set forth with
specificity what limitations Complainant may have had. The requests
also asked the doctors to review his position description to determine
whether he could perform the essential functions of his position. Thus,
the AJ concluded that the requests were merely an attempt to meet the
Agency’s obligation under the law and were made on more than one
occasion only because the documentation submitted was deficient.
Accordingly, the AJ concluded the incidents alleged were not sufficiently
severe or pervasive to rise to the level of a discriminatory hostile
work environment. Further, the AJ determined that none of the alleged
actions were based on discriminatory animus. As a result, the AJ held
that Complainant failed to establish that he had been discriminated
against or subjected to a hostile work environment as alleged.
The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected him
to discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the AJ erred when he ignored the
testimony of his doctor who testified that the stressful work environment
caused Complainant to have a heart attack. Complainant contends that this
stress was the result of the Agency’s continual requests for medical
documentation. Further, Complainant alleges that the Agency colluded and
provided false testimony regarding their knowledge of his disability.
Finally, Complainant argues that he requested an accommodation from
climbing ladders and crawling under tight spaces and submitted to
management a list of tasks he could perform on February 5, 2003.
Accordingly, Complainant requests that the Commission reverse the final
order.1 The Agency requests that the Commission affirm the final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985));
EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March
8, 1994). In determining that a working environment is hostile, factors
to consider are 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. See Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance
at 6. The Supreme Court has stated that: “Conduct that is not severe
or pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive -
is beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant
must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on her statutorily protected class; (4) the harassment affected
a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
After a review of the record, the Commission finds that the incidents
alleged do not constitute discriminatory harassment. The Commission
concludes that Complainant did not prove that he was subjected to conduct
sufficiently severe or pervasive to create a hostile work environment and
that he also failed to prove that the Agency’s actions were unlawfully
motivated by his protected class or his prior protected activity.
Even assuming that the alleged incidents would be sufficiently severe or
pervasive to constitute a hostile work environment, there is insufficient
evidence that any of them were motivated by discriminatory animus.
Further, to the extent Complainant is alleging disparate treatment with
respect to these claims, he has not shown that the Agency’s reasons
for its actions were a pretext for discrimination. Accordingly, the
Commission finds that the record contains substantial evidence that
supports the AJ's determination that Complainant failed to prove that
he was subjected to unlawful discrimination or harassment.
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. § 1630. In order to establish
that Complainant was denied a reasonable accommodation, Complainant must
show that: (1) he is an individual with a disability, as defined by 29
C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability
pursuant to 29 C.F. R. § 1630.2(m); and (3) the agency failed to
provide a reasonable accommodation. See Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”).
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. See 29 C.F.R. §§
1630.2(c) and (p). The Commission shall assume without deciding that
Complainant is a qualified individual with a disability.
The record indicates that Complainant was provided several accommodations
for his disability including removal of all physical duties that violated
his medical restrictions. The record establishes that Complainant was
accommodated by being given a temporary building management assignment
working at a desk rather than in the field. Complainant was provided
sedentary work and not required to perform the physical duties of the
position. The Agency may choose among reasonable accommodations as long
as the chosen accommodation is effective. See U.S. Airways v. Barnett,
535 U.S. 391, 400 (2002). Complainant has presented no evidence that
this was an ineffective accommodation.
It is also clear that the Agency sought to accommodate Complainant when
it tried to engage him in the interactive process designed to identify
the nature of the disability and the actions necessary to accommodate
the disability. The record establishes that some of Complainant’s
submitted medical documentation conflicted or provided insufficient
information regarding his restrictions. The Agency requested more
specific documentation to determine what Complainant’s limitations
were and what accommodations were needed. The Commission finds that
it was reasonable for the Agency to request medical documentation
in their attempts to accommodate Complainant. The Commission notes
that an employer is entitled to request “reasonable documentation
about [an employee's] disability and its functional limitations
that require reasonable accommodation.” EEOC Enforcement Guidance:
Disability-Related Inquiries and Medical Examinations of Employees Under
the Americans With Disabilities Act, Example 7, p. 20 (July 27, 2000)
(Guidance). This requirement is met when the employer has a reasonable
belief, based on objective evidence, that (1) an employee's ability to
perform the essential job functions is impaired by a medical condition;
or (2) that an employee poses a direct threat due to a medical condition.
See Guidance at 14. The Commission finds that the Agency did not act
unreasonably. Thus, the Commission finds that Complainant has not shown
that the Agency denied his requests for reasonable accommodation.
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 final Agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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 (Nov. 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
January 12, 2011
Date
1 The Commission notes that on appeal, Complainant did not raise any
challenges to the dismissal of claims (4) and (5). The Commission
exercises its discretion to review only the issues specifically raised in
Complainant's appeal. Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MP-110), 9-10 (Nov. 9, 1999). Accordingly,
because Complainant does not raise the dismissal of these claims on
appeal, the Commission declines to address them in the instant decision.
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0120080378
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080378