0120120008
07-11-2014
Complainant, v. Gina McCarthy, Administrator, Environmental Protection Agency, Agency.
Complainant,
v.
Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120120008
Hearing No. 570-2008-00044X
Agency No. 20070058HQ
DECISION
On September 27, 2011, Complainant filed an appeal from the Agency's August 26, 2011 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 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.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that he was discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Economist, GS-0110-13, in the Agency's Office of Water in Washington, D.C. On August 9, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Pakistani), sex (male), disability (allergies), age (61), and reprisal for prior protected EEO activity when, in 2007, management relocated his workspace from a private room to a cubicle.
The Agency dismissed two of Complainant's claims. Specifically, the Agency dismissed Complainant's allegations that he was discriminated against when he was not promoted to a GS-14 position and when he was reassigned to the Standards and Health Protection Division without agreeing to the reassignment. The Agency dismissed these claims for untimely EEO counselor contact. The Agency found that the non-promotion claim occurred in 1999 or 2000, and the reassignment claim occurred in 2004 or 2005. The Agency noted that Complainant had participated in the EEO process before, and therefore he had knowledge of the requirement of timely EEO counselor contact. As such, the Agency found that Complainant's June 6, 2007 contact was untimely. The Agency accepted for investigation the claim at issue in this case, i.e., the relocation of Complainant's workspace.
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). Complainant timely requested a hearing. On June 10, 2010, the AJ affirmed the Agency's dismissal of Complainant's promotion and reassignment claims as untimely. The AJ assigned to the case initially dismissed the Agency's motion for a decision without a hearing. However, during the pre-hearing process, the AJ reconsidered and determined that the complaint did not warrant a hearing and, over Complainant's objections, issued a decision without a hearing on August 3, 2010.
The AJ found the following facts: Sometime between 1999 and 2000, Complainant was transferred from the Office of Wastewater Management (OWM) to the Engineering and Analysis Division (EAD). After his reassignment to EAD, Complainant notified management that his workspace, a cubicle, caused him physical distress, due to his sensitivity to environmental pollutants. On October 2, 2000, Complainant's physician submitted a letter to Complainant's immediate supervisor (S1) advising the Agency of Complainant's allergic sensitivities and recommending that Complainant be assigned a separate room/office in which to work.
On October 27, 2000, after consulting with the Office of Human Resources, S1 recognized Complainant's eligibility for alternative work space under the Agency's Alternative Workspace (AWS) program, which was instituted in response to the sick building syndrome from which the EPA's Waterside Mall headquarters' complex suffered. Under the AWS, the Agency allowed an employee who provided evidence of adverse health effects, incident to the occupancy of an Agency workspace, to request relocation to an alternate work space.
Sometime after Complainant transferred to EAD, his unit relocated from the Waterside Mall complex to the Pennsylvania Avenue complex in Northwest Washington. At the time of the relocation, the unit adopted a general policy of reserving private offices only for GS-14 Branch Chiefs and higher level supervisors.
As a result of the move to Pennsylvania Avenue, EAD was allocated a less desirable work space than other divisions. Because of the undesirability of the work space, EAD was given additional private offices. Subsequent to the move, Complainant moved into a private office. Complainant's, occupancy of the private office was not based on his participation in the Agency's AWS program, but his qualification for the space under the office's allocation priority criteria.
During 2004, the unit was reorganized and EAD was reduced in size. Complainant was reassigned to the Standards and Health Protection Division (SHD). In March 2005, Complainant requested a reasonable accommodation for his allergy sensitivities in order to retain his private office. Between March and September 2005, the Agency's Reasonable Accommodation Coordinator (RAC), requested information from Complainant that was necessary for him to continue with the reasonable accommodation process. On September 30, 2005, the RAC closed the file on Complainant's reasonable accommodation request, based on Complainant's failure to cooperate with the reasonable accommodation interactive process. Complainant, however, was allowed to remain in his private office, due to a planned renovation of the work space in the division.
On July 6, 2006, in anticipation of the completion of the renovation, Complainant submitted another reasonable accommodation request based on his allergy sensitivities to environmental stressors and hypothermia disorder, and asked to occupy a private office. The RAC implemented the Agency's reasonable accommodation process and requested medical documentation from Complainant.
On July 6, 2006, Complainant resubmitted to RAC the October 2000 physician's letter, a June 21, 2006 prescription, and another physician's recommendation that he be assigned to a private office. The RAC determined that the medical documentation submitted was not sufficient and requested that Complainant sign a medical release that would allow the RAC to obtain more medical information directly from his medical providers. Complainant refused to do so.
On July 7, 2006, OHR determined that Complainant was not an individual with a disability under the Rehabilitation Act due to the lack of medical documentation provided by Complainant. On October 30, 2006, Complainant sent an e-mail advising RAC of this decision to suspend his reasonable accommodation request, pending his pursuit of a private office through an alternative process, the AWS.
In March 2007, the renovation project was completed and Complainant was assigned to a cubicle space. Complainant was given the option to occupy a cubicle in a closed space or a cubicle in an open space. Complainant chose a cubicle in a closed space. Sometime thereafter, Complainant complained to his managers about the effects of working in the cubicle.
As a result, the EPA conducted an air quality test of his prior office and his new cubicle. While the test was taking place, Complainant was allowed to work from home full-time. In July 2007, the EPA completed its air quality testing and concluded that there was no material difference in the air quality of the two spaces.
OHR requested a legal opinion on the matter from the Office of General Counsel (OGC). OCG concluded that based on the test results of the air quality test, Complainant was ineligible for AWS.
Complainant returned to work sometime between November and December 2007, and management allowed him to work in an assigned cubicle on the 6th floor in a different location from his prior cubicle. Complainant did not complain of any adverse effects after being relocated to the 6th floor cubicle.
The AJ found that Complainant failed to establish that he was an individual with a disability. Specifically, the AJ found that the record was devoid of proper medical documentation to show that Complainant suffered from the impairments that he alleged. The AJ also found that Complainant failed to show that he engaged in prior EEO activity and that the responsible management officials involved in this matter knew of any such activity. The AJ further found that Complainant failed to establish a prima face case of discrimination because he failed to identify a similarly situated individual outside of his protected classes who was treated more favorably by the Agency.
The AJ further found that the Agency stated legitimate nondiscriminatory reasons for not assigning Complainant a private office permanently. Specifically, the Agency asserted that Complainant was not formally assigned to work from a private office because he was not a supervisor and was not promoted beyond the GS-13 level. The Agency also asserted that Complainant failed to provide the necessary medical documentation to show that he was a qualified individual with a disability despite their multiple requests for proper medical documentation.
The AJ found that Complainant failed to demonstrate that the Agency's reasons were a pretext for discrimination because he did not offer sufficient evidence to show that the proffered reasons were not worthy of credence. Further the AJ noted that the record showed that no nonsupervisory employees occupied private offices.
With regard to Complainant's reasonable accommodation claim, the AJ found that the record clearly showed that Complainant failed to cooperate with the Agency in the reasonable accommodation evaluative process and that he discontinued his reasonable accommodation request to pursue a private office through the AWS process.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in issuing a decision without a hearing. In support of his argument, Complainant argues that the Agency misframed his claim and rather than a failure to accommodate claim, he was alleging that he was treated disparately in that White employees were provided AWS while in similar situations, non-white employees were required to go through the reasonable accommodation process. Complainant also argues that the AJ employed the wrong standard of law in the case.
Further, Complainant argues that the Agency erred in dismissing two of his claims, promotion and reassignment. In so arguing, Complainant suggests that the promotion claim is a continuing violation as he has not yet received the promotion and that he has not yet been denied the promotion. Similarly, with regard to the reassignment, Complainant argues that because an agreed upon reassignment has not yet occurred, it is also a continuing violation. Complainant also argues that he was subjected to harassment.
Complainant also argues that he is providing new evidence of discrimination. Complainant asserts that women are promoted at a greater rate than men in the division. Complainant states that other males were not promoted and women were selected for the promotion.
ANALYSIS AND FINDINGS
Preliminarily, we note that the record reveals that the AJ affirmed the Agency's dismissal of Complainant's promotion and reassignment claims for the untimely EEO counselor contact. Although on appeal, Complainant argues that these claims are timely since they are continuing violations because Complainant still has not received his promotion and is still reassigned. However, we find that the promotion claim occurred in 1999 or 2000, and the reassignment claim occurred in 2004 or 2005. These are discrete acts and as such cannot be linked to his timely 2007 EEO Counselor contact. "Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." See Nat 1 R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (June 10, 2002). As such, Complainant's June 6, 2007 contact was untimely with regard to the promotion and reassignment claims. Complainant has not offered any evidence to show that the time periods for those claims should be waived. As such, we find that the Agency appropriately dismissed these claims.
Complainant also argues that he is providing new evidence of discrimination. We note, however, as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. EEO Management Directive for 29 C.F.R. Part 1614 (as revised, November 9, 1999) (MD-110), at 9-15 29 C.F.R. � 1614.404(b). Therefore, since Complainant has not demonstrated that this evidence was not reasonably available, the Commission declines to consider the additional evidence that Complainant submitted on appeal. Complainant also alleges numerous other claims, including that women are promoted at a higher rate than men. We note that generally, new claims raised for the first time as part of the current appeal are not accepted. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (April 22, 2004).
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and 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 Chapter 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").
We must first 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. 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. In the hearing context, this means that the administrative judge 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 administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's summary judgment decision was appropriate.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodations 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. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. Enforcement Guidance - Reasonable Accommodation. The Rehabilitation Act prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, he 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 absent undue hardship. See Enforcement Guidance.
To the extent Complainant alleged that he was denied a reasonable accommodation, we disagree. Even if we assume Complainant is an individual with a disability, the record indicates that Complainant did not provide requested medical documentation and later suspended the reasonable accommodation process. The Commission has held that, if an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (Feb. 16, 2012).
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
We assume for the purposes of this analysis, that Complainant has established a prima facie case of discrimination based on race, national origin, sex, disability, age and reprisal for prior protected EEO activity. We also find that the AJ correctly determined that the Agency articulated a legitimate, non-discriminatory reason for why, in 2007, management relocated his workspace from a private room to a cubicle. After a renovation, a general policy was made to only reserve private offices for GS-14 Branch Chiefs and higher level supervisors. Complainant has not presented evidence showing that this explanation was untrue. Absent an entitlement via a reasonable accommodation, Complainant has not established why he was entitled to a private office.
We note Complainant's contention on appeal that his claim was mis-framed in that he was alleging that he was treated disparately because White employees were provided AWS in similar situations, but non-white employees were required to go through the reasonable accommodation process. However, the record indicates that Complainant discontinued the reasonable accommodation process and did in fact proceed in the AWS process, but a determination was later made that he was ineligible because air quality test results showed that there was no material difference in the air quality between the private office he previously occupied and his new cubicle. Therefore, there was no need to continue in the AWS process. We agree with the AJ's finding that Complainant failed to establish that the Agency's actions were motivated by discriminatory animus.
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 Agency's final order.
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
_7/11/14_________________
Date
2
0120120008
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120008