0120132520
08-06-2015
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120132520
Agency No. 5Z1S12002
DECISION
On June 11, 2013, Complainant filed an appeal from the Agency's May 31, 2013 final decision 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electronics Engineer at the Agency's Vandenberg Base in California. In his position, Complainant served as a computer technology expert. He worked for the Supervisor, the Chief, and the Commander.
On April 16, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (physical and mental) when he was subjected to harassment. In support of his claim, Complainant alleged that the following events occurred:
1. On March 5, 2012, Complainant was required to submit a Daily Activity Report (DAR) while there was no similar requirement for other members.
2. On March 5, 2012, Complainant was singled out for arriving to work late on an almost daily basis when most other members were chronically 15-20 minutes late for their scheduled work time.
3. On March 5, 2012, Complainant was issued a memo for record regarding his sleep problem despite providing his supervisor (Supervisor) with a doctor's note regarding his sleep problem.
4. On March 5, 2012, Complainant was ordered to temporarily relocate to another office while another member who routinely fell asleep at work was not ordered to relocate.
5. On March 8, 2012, Complainant was told, "You need to take that home and read it on your own time" or words to that effect when the complainant was reading his Federal Retirement/Pension/Health/VERA & VSIP/Medical Disability benefits and applications.
6. On March 11, 2012, Complainant's within-grade pay increase was withheld.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The Agency determined that the evidence of record established that Complainant's medical condition - diagnosed as sleep apnea and narcolepsy - affected him at work because Complainant was prone to frequently falling asleep while at work. In sum, the Agency determined that the condition satisfied the criteria for finding that Complainant is an individual with a disability. The FAD then turned to whether Complainant was a "qualified" individual a disability. The Agency noted that Complainant did not believe that he could perform the duties of his position in the period immediately preceding his complaint. During this period, Complainant had provided Agency management with medical documentation from his physician stating that he could not perform the duties of his position. Complainant did not ask for any accommodation. In addition, the Agency found that Complainant's work performance was poor, resulting in his placement on a performance improvement plan (PIP) in February 2012, immediately prior to the events raised in his complaint. Based on these factors, the Agency concluded that Complainant failed to establish that he was qualified for his position either with or without accommodation.
Finally, the Agency concluded that even if Complainant was covered under the Rehabilitation Act, he failed to establish that he was subjected to discriminatory harassment based on his disability. The Agency determined that the evidence of record established that management was merely acting based on Complainant's performance and conduct issues. Moreover, the Agency determined that the events alleged by Complainant were not sufficiently severe or pervasive to establish a hostile work environment claim. Therefore, the Agency concluded that Complainant failed to establish his claim of disability-based harassment.
The instant appeal followed.
ANALYSIS AND FINDINGS
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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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").
It is well-settled that harassment based on an individual's disability is actionable. In order to establish a viable claim of harassment/hostile work environment, Complainant must show that: (1) he is a qualified individual with a disability covered under the Rehabilitation Act; (2) he was subjected to unwelcome conduct; (3) the harassment complained of was based on his disability; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
As noted above, assuming Complainant is an individual with a disability, he must also show that he is "qualified" within the meaning of 29 C.F.R. � 1630.2(m). The term "qualified individual with a disability," with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. � 1630.2(m). In the case at hand, Complainant provided medical documentation indicating that his necropsy and sleep apnea kept him out of work from May 2012 to August 2012. Complainant did not indicate that there was any accommodation that the Agency could provide that would have allowed him to perform the duties of his position. Management officials indicated that due to his medical condition, he was not able to attend launches, would fall asleep during briefings, had to be sent home from work, and missed work. They documented how Complainant's job performance was affected and the problems it was causing the workplace. Complainant argued on appeal that he did not have problems working for his prior supervisor, but provided no evidence in support of this claim. Based upon the evidence of record, we find that Complainant has not established that he was qualified. Therefore, we cannot find that Complainant has established part (1) of his prima facie case of disability-based harassment.
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 decision finding no discrimination.
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
August 6, 2015
__________________
Date
2
0120132520
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132520