0120130379
07-31-2015
Complainant v. Jeh Johnson, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
Complainant
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 0120130379
Hearing No. 430-2011-00392X
Agency No. HS-USCG-00846-2011
DECISION
Complainant filed an appeal from the Agency's September 25, 2012, final order concerning her 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 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 there are genuine issues of material fact that require a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ); and 2) whether the AJ properly found that Complainant did not prove that she was subjected to disability discrimination or reprisal when the Agency required her to keep work logs when teleworking, denied her request to attend training, asked her to provide updated information, and did not immediately respond to her request for a laptop.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Educational Technician at the Agency's Training Quota Management Center (TQMC/TQC) in Chesapeake, Virginia. In 1999, Complainant was diagnosed with Lupus, which causes her to experience swollen joints, chest and kidney pain, difficulty walking, sleeping limitations, difficulty walking, and limits on her range of motion.
On March 1, 2007, Complainant submitted a letter from her physician that requested that she be provided with the reasonable accommodation of telecommuting on an intermittent basis. On November 16, 2007, the Agency and Complainant entered into an agreement providing that Complainant may telecommute from home on days when she is ill. The agreement further states that Complainant "shall also maintain a log which accounts (in general) for your time in accordance with the forthcoming TQC Telecommuting Instruction." On February 11, 2011, Complainant's supervisor (S1) directed Complainant to maintain a log to account for her workday while she was telecommuting, in which she would note her log-in and log-out times as well as all work done within each two-hour increment.
On February 17, 2011, Complainant initiated contact with an EEO Counselor, and on March 24, 2011, filed an EEO complaint in which she alleged that the Agency discriminated against her on the basis of disability when:
1. On February 14, 2011, Complainant received an email requesting that she keep records/logs of daily work accomplished that other employees were not required to keep; and
2. On February 11, 2011, Complainant was asked to maintain a log that accounted for her workday in two-hour increments on the days she telecommutes.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing.
Meanwhile, beginning in or about February 2011, Complainant began to telecommute five days per week. In a memorandum dated April 5, 2011, the Commander notified Complainant that the Agency had not authorized her to telecommute full-time, but a revised telecommuting agreement would be prepared after Complainant provided updated medical documentation.
On May 27, 2011, Complainant requested to attend the New Leader Program. On May 31, 2011, S1 denied Complainant's request for the training. In July 2011, and an email dated October 18, 2011, Complainant requested a laptop to use at home while she telecommuted.
On October 18, 2011, Complainant filed a motion to amend her EEO complaint with the AJ, which was granted on February 7, 2012. In her motion, Complainant also alleged that the Agency discriminated against her in reprisal for her previous EEO activity1 when:
3. The Agency denied her May 27, 2011, request to attend a Civilian New Leader course;
4. The Agency asked Complainant to provide updated medical information to support her reasonable accommodation agreement, and no meeting was held regarding the agreement; and
5. On July 5, 2011, Complainant requested a laptop to telecommute but did not receive an answer. On or about October 18, 2011, Complainant was told that her request was never processed.
On November 15, 2011, the Agency moved for summary judgment in its favor, to which Complainant responded in opposition on November 28, 2011.
AJ's Decision
The AJ granted the Agency's motion for summary judgment in a decision dated August 30, 2012. In that decision, the AJ found that with respect to disability discrimination, Complainant did not provide any evidence that the Agency's non-discriminatory explanations for its actions were pretext for unlawful discrimination. The AJ also found that the alleged actions were not severe or pervasive enough to constitute a hostile work environment, and there was no evidence the alleged actions occurred because of her disability. Regarding reprisal, the AJ found that Complainant did not prove that the Agency's non-discriminatory explanations were pretext for unlawful discrimination. The AJ noted that Complainant was able to use her personal computer to telecommute with the exception of a few days when her computer had a virus, and there was no evidence that similarly-situated employees were given a laptop by the Agency. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that, although she signed a reasonable accommodation agreement, she should not be required to maintain a work log because such a requirement is not in the TQC Telecommuting Instructions. Complainant further contends that the Agency stopped collecting her log in October 2011, but the Agency still requires her to maintain the log. Complainant reiterates her claim that having to maintain the log is harassment because it interferes with her work performance, and it is humiliating to be "babysat" when she telecommutes. Regarding her reprisal claim, Complainant maintains that she should have been granted the requested training because she is the employee with the third-longest tenure and has the potential for leadership. Regarding Complainant's request for a laptop to use while telecommuting, she contends that the fact that she has a working personal computer should not influence the processing of her request. The Agency does not present any arguments on appeal.
ANALYSIS AND FINDINGS
Summary Judgment
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 Defense, EEOC Appeal No. 01A24206 (July 11, 2003). 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 careful review of the record we find that there was no genuine issue of material fact or credibility so as to warrant a hearing. A decision without a hearing therefore was appropriate.
Disparate Treatment and Hostile Work Environment
Complainant's complaint can be analyzed under both disparate treatment and hostile work environment analyses. In order to prevail in a disparate treatment claim, 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In order to establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee. 682 F.2d 897 (11th Cir. 1982).
In this case, we assume, for the sake of analysis and without so finding, that Complainant established a prima facie case of discrimination and is a qualified individual with a disability. Nonetheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, regarding Complainant's disability discrimination claims, S1 stated that Complainant was required to keep a work log while telecommuting so that management would be aware of her activities while she telecommutes.
Regarding Complainant's reprisal claims, S1 stated that she denied Complainant's training request because Complainant would have to be absent from her job for 50 days, and Complainant was not eligible for the training because she was not in a leadership position. S1 further stated that she sought additional documentation from Complainant because she had telecommuted for 34 consecutive work days; therefore, management sought to determine whether a full-time telecommuting agreement was warranted for Complainant. S1 also stated that, Complainant previously had only telecommuted two to three times per week.
Regarding Complainant's request for a government laptop, S1 stated that she worked with the Information System Security Officer (ISSO) to ensure that any government laptop provided to Complainant met all technology needs, security requirements, and budget constraints. Management further stated that it provided Complainant with a government laptop on November 17, 2011, but that Complainant reported that the laptop did not connect to the Agency network. S1 further stated that when she asked Complainant about her computer issues on November 28, 2011, Complainant stated that she did not have time to discuss the matter. S1 stated that on November 29, 2011, Complainant told S1 that she did not have any issues with her personal computer, which resolved the issue.
In an attempt to prove pretext, Complainant contends that another employee who telecommutes was not required to keep a log. However, although this employee (C1) was approved to telecommute, Complainant acknowledges that C1 did not actually telecommute. Complainant also contends that the TQC Telecommuting Instructions do not require employees to maintain a log. However, the agreement clearly contemplates that Complainant would provide management with a log of her telecommuting activities. Moreover, even though TQC Telecommuting Instructions were never implemented on this matter, we find it reasonable that an Agency would require its employees to account for their telecommuting activities. Complainant contends that such a policy targets disabled employees, but we find that it is focused on employees who work outside the office, not disabled employees. Complainant has not identified any other employee who telecommutes and is not required to keep a work log.
Complainant also maintains that she should have been granted the requested training because she is the employee with the third-longest tenure and has leadership potential. The New Leader Program required participants in its training to have "just entered leadership positions or have a high potential for leadership positions such as first-line supervisors, team leaders, project leaders, administrative support, and members of self-directed teams." Agency's Motion for Summary Judgment, Attachment 5. Complainant contends that she has leadership potential, but the Agency maintains that she was ineligible for the training because she was not in a leadership position. Complainant may disagree with the Agency's assessment of whether she has "high leadership potential," but we do not find that the Agency's business decisions in this case are so unreasonable that they reflect discriminatory animus. Further, Complainant does not rebut the Agency's explanation that she was also denied the training because it required her to be away from her position for 50 days. We note that EEO regulations do not protect against unfair business decisions, but only against decisions motivated by unlawful animus. Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1257 (5th Cir. 1977).
Complainant further contends that the fact that she has a working personal computer should not influence the processing of her request for an Agency computer. However, the record reveals that, under the Agency's policy, employees are ordinarily responsible for providing computer equipment for telecommuting. We conclude that Complainant has not shown that similarly-situated individuals were treated more favorably than she was treated under similar circumstances.
As such, we find that Complainant did not provide any evidence from which a reasonable fact-finder could conclude that the Agency's non-discriminatory explanations are pretext for unlawful discrimination. Likewise, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant has not established 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 (Sept. 21, 2000).
Reasonable Accommodation
To the extent that Complainant maintains that she was denied a reasonable accommodation for her disability, we note that 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. In this case, Complainant contends that she was denied a reasonable accommodation because the Agency took too long to provide her with a government computer for teleworking, and the Agency computer provided to her did not work properly.
However, Complainant acknowledges that she was able to use her personal computer when telecommuting. There is no evidence that the Agency objected to this arrangement or that Complainant was unable to use her personal computer to perform her work duties, beyond a few days when her personal computer had a computer virus. In fact, in an email to S1 dated November 29, 2011, Complainant affirmed that she did not have any issues using her personal computer. We note that, although protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Q. 9 (Oct. 17, 2002). Thus, we conclude that allowing Complainant to telecommute using her personal computer was an effective accommodation in this case. Consequently, we find that Complainant has not shown that she was denied a reasonable accommodation.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that this case presented no genuine issues of material fact, such that summary judgment was appropriate. We further find that Complainant has not established that the Agency denied her a reasonable accommodation, or subjected her to unlawful harassment or discrimination. Accordingly, we 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
July 31, 2015
Date
1 We note that Complainant only alleged reprisal with respect to her amended claims.
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0120130379
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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