Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionJul 30, 2014
0120111973 (E.E.O.C. Jul. 30, 2014)

0120111973

07-30-2014

Complainant, v. John Kerry, Secretary, Department of State, Agency.


Complainant,

v.

John Kerry,

Secretary,

Department of State,

Agency.

Appeal No. 0120111973

Agency No. DOS-F-071-09

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 21, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Legislative Management Officer at the Agency's Office of Counter-terrorism in Washington D.C.

On April 3, 2009, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability and in reprisal for prior EEO activity when:

1. he was denied reasonable accommodation;

2. management issued him a 2008-2009 EER that did not accurately reflect his performance and accomplishments;

3. management failed to timely submit paperwork to process his workers' compensation claim;

4. he was subjected to a hostile work environment, characterized by, but not limited to, changes in his work schedule and accusations of lying about his illness; and

5. he was charged Absence Without Leave (AWOL).1

The record reflects that in March 2006, Complainant suffered an on-the-job injury while assigned in the Middle East. The record further reflects that the Department of Labor's Office of Workers' Compensation Programs (OWCP) accepted Complainant's claim for his injury sustained in March 2006 and the condition was identified as degeneration of cervical intervertebral disc, with unknown cause. Complainant stated that until April 22, 2009, he underwent physical therapy twice a week. Complainant stated that while the 2006 diagnosis of his neck injury was inclusive, he continued to suffer from neck pain upon his return to the United States. Furthermore, Complainant stated that he suffers from major depression as diagnosed in January 2009 by his physician.

The record reflects that in January 2009, Complainant was cleared to return to work. In his letter to the Agency dated August 13, 2009, Complainant's physician stated that Complainant continues to complain about problems with his neck, shoulders and arms. The physician stated that Complainant's other two physicians could provide additional information about Complainant's pain. However, there is no documentation in the record from either of the referenced physicians after January 2009. In January 2010, Complainant underwent surgery related to his medical condition and was cleared to work with restrictions on January 15, 2010.

After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on April 21, 2011, pursuant to 29 C.F.R. � 1614.110(b).

The Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of disability and reprisal discrimination.2 The Agency further found that assuming that Complainant established a prima facie case of disability and reprisal discrimination, Agency management nonetheless articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.

Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on disability and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.

The Agency noted that in regard to claim 1, since February 2009, Complainant had not been at work. The Agency determined that it was unable to accommodate Complainant's medical condition "without his physical presence in the work place. If Complainant is implying that his requested accommodation should be approval for his absences, he still has an obligation to abide by the Agency's leave policies. He failed to follow Agency's policies by not providing documentation to support his ongoing absence until the end of August of 2009."

The Agency further noted that an ergonomic study dated June 26, 2008 for Complainant's workspace indicated the following recommendations: an appropriate chair, keyboard tray, monitor arm or riser, a document holder and that Complainant be allowed to take frequent breaks. The record reflects that when Complainant was provided a copy of the recommended on July 3, 2008, he inquired if the offered chair was satisfactory on September 18, 2008, and approved it for his use. Complainant went on extended leave and returned to work on December 2, 2008. Upon his return, Complainant notified the Nurse Case Manager that his office was not in ergonomic compliance, as the June 2008 recommendations were not implemented. At that time, eighty percent of the requested items were in place on December 2, 2008, but Complainant deemed them unacceptable for unspecified reasons. The supervisor then took action to expedite the procurement process which was completed, and items were delivered on January 8, 2009.

Complainant's former supervisor stated that she was not aware of Complainant's medical condition until September 2008 "when the physical therapy and his long absence began. It was then I learned he had filed a workman's comp claim when he was on a excursion tour in Riyadh [Saudi Arabia]." Specifically, the former supervisor stated that in September 2008, she learned that Complainant "had problems with his back and neck. In phone messages in April 2009, he started mentioning 'major depression' as a disability."

The former supervisor stated that when Complainant returned to work in December 2008, he requested an ergonomic chair. The former supervisor stated that Complainant's request was granted and "I believe a special ergonomically correct chair was ordered but before it was received a different [ergonomically] correct chair was used as a placeholder." The former supervisor stated, however, there was a delay in ordering the chair "from early December. The changes were made later in December."

With respect to Complainant's allegation that he was instructed to return to duty at that time without full implementation of the office ergonomics, the former supervisor stated that the Chief, Disability and Reasonable Accommodation Division (Chief) brought an ergonomic expert to his office to make arrangements. He was told not to return until these ergonomics changes were made."

Complainant also asserted that he was told that the medical documentation he provided to management in support of his injury compensation claim was not acceptable to support his on-going requests for Leave Without Pay or other absences, as they were not signed by a doctor and were not on a doctor's letterhead. The former supervisor stated that on December 17, 2008, she met with Complainant, Nurse Case Manager, and the Chief "where we said we needed a doctor's letter on letterhead explaining his absence. It is my knowledge that USG policy is that a letter on letterhead is required after three days of absence. I myself had a family medical emergency this summer and provided such a letter (signed by a doctor on letterhead) to SCT HR personnel."

With respect to Complainant's claim that his start time was changed from 9:30 a.m. to 8:15 p.m., the former supervisor stated "after we received medical documentation that the complainant was cleared for duty and hadn't complied, we tried to make his hours more standard."

Complainant's supervisor stated that Complainant's start time was changed from 9:30 a.m. to 8:15 p.m. because "he had not complied with requests to report to work once cleared for duty. His being located in a separate location required additional measures for us to be better able to track attendance." The supervisor stated that in regard to Complainant's allegation that he was told by his supervisor that management expected him to work a full-five day a week schedule, the supervisor denied it.

Further, the supervisor stated that Complainant's request for a flexi-schedule program was denied "because he wasn't coming to work as required. The decision was made after consultation with his direct supervisor."

The Chief stated that at the time Complainant "requested a chair and we provided it. He requested a music stand to mount his papers on, and that was supplied. He requested a [keyboard tray] and that was provided, as was a flat monitor arm and was advised to make behavioral modifications by the ergonomics office."

The Nurse Case Manager stated that on November 25, 2008, Complainant's doctor released Complainant to full time light duty work effective November 25, 2008 "with the stipulation that his work space be evaluated for ergonomic correctness and that appropriate adjustments should be made. I advised [Complainant] that he would need to wait to report to duty until the evaluation was done. [Complainant] did meet with the Industrial Hygienist. The work order for the equipment was submitted to GSO December 5th, I don't know the exact date the equipment was in place but it was on or about December 20th."

Further, the Nurse Case Manager stated that on numerous occasions she advised Complainant that he was "technically released for full duty, full time employment after January 6, 2009 and that the only excused absence he was entitled to under the OWCP scope would be for physical therapy twice a week, 2 [hours] for each therapy session. Time taken off for any mental health reason would not be considered under OWCP rules because he had not submitted a claim for such and a mental health claim had not been accepted by OWCP. Additionally, I had offered to assist [Complainant] to find a physical therapy provider in the metro Washington DC region rather than the provider he was using in Virginia Beach where he moved. [Complainant] had told me that he had an apartment in the metropolitan area, but at some point he gave up the apartment. I advised [Complainant] that driving back and forth between Virginia Beach and Washington DC was probably counterproductive to any benefit he might have gained in his therapy on Mondays and Fridays. This also meant taking two entire days off from work for therapy. I advised him that he needed to provide his supervisor with time slips from week to week for the Mondays and Fridays that he was taking off however [Complainant] did not do this. At some point, [Complainant] stopped coming to work. His Supervisor did advise me that he was calling in at various times during the day to say that he would not be in due to depression and neck pain."

Regarding claim 2, the former supervisor stated that she rated Complainant "highly successful" for the 2008-2009 rating period. The former supervisor stated that she did not give him an "outstanding" rating because he "didn't do outstanding work, he did highly successful work." The former supervisor stated that Complainant's absences were not a factor in her decision to give him a "highly successful"l rating. Specifically, the former supervisor stated "I did the rating on the time and quality of work from January through August of 2008."

With respect to Complainant's claim that he received a lower rating for the relevant period than the prior year, the former supervisor stated "part of it is the new evaluation format; the rating system and forms changed in 2008. The new forms are designed to deal with ratings inflation; the idea that not everyone at the Department is 'outstanding' year after year. I myself only got a highly successful with this new system after I'd had outstanding ratings for years."

The former supervisor stated that during the relevant period, she met with Complainant "both verbally and by email regularly. I talked to him about the need to consult w/bureau experts to update material before he sent out old language for clearance throughout the building; and that if people don't clear by email, he needs to follow up with phone calls and further emails rather than just send it forward as if it had been cleared. I talked to him about the need for consistency, that al-Qa'ida, for example not be spelled three different ways in one document (al-Qa'ida, Al Qaeda, al-Qaida). I also talked to him about trying to send shorter emails to people, that people were busy and tended not to read very long emails carefully."

Regarding claim 3, the Nurse Case Manager stated that as part of her job, she makes certain that the Department of Labor (DOL) "has the necessary medical documentation that supports any claim that has been submitted. I communicate between the employee and the employer's supervisor and HR with regards to dates of disability, releases to work, and the parameters of the release to work. If ergonomic evaluations or equipment is requested by a physician, I contact the appropriate resource within the Department of State so that the requirements outlined by the physician are met. I act as a liaison between the Department of State and Department of Labor on behalf of the employee and advocate for the employee."

Further, the Nurse Case Manager stated that on May 5, 2006, Complainant filed a CA-1 to the Department of Labor "while serving in Riyadh...the Department of Labor's web site shows that [Complainant's] claim was accepted on 05-12-06...the CA2 was completed by [Complainant] 08-29-08. It has been submitted twice to DOL and is still not showing in the system."

With respect to Complainant's allegations that from 2008 to present, he provided the Nurse Case Manager with CA-7's, CA-20's and CA-17 but to date the OWCP has claimed non-receipt from the Department of State, the Nurse Case Manager denied it. The Nurse Case Manager stated "I do not process CA7's, this is an HR function. If I see that a CA7 is submitted to HR, I make certain either a CA20 or a physicians report is sent to DOL. If one is not available I let the employee know he must obtain one. [Complainant's] CA20's were all provided to DOL."

Regarding claim 4, the former supervisor denied subjecting Complainant to a hostile work environment. For instance the former supervisor stated that on January 7, 2009, she instructed Complainant to provide her with documentation showing his accomplishments/project status for the day "because complainant's attendance had been erratic and work requires follow-up. I needed to know where things stood that might require follow-up, so I could complete the tasks. This included a Congressional reporting requirement with a set deadline."

Further, the former supervisor stated that she does not recall Complainant telling her that he was being subjected to harassment. The former supervisor stated "I don't recall [Complainant] making such an assertion with the exception of the aforementioned email where he said 'why are you discriminating against me?'"

With respect to Complainant's claim that he had worked uncompensated overtime, the former supervisor stated "I don't recall him ever informing me about working uncompensated overtime."

The supervisor stated that Complainant mentioned that he was being subjected to harassment "in email from time to time. As we were trying to get him to comply with regulations, I did not understand his reference and took no action." The supervisor also stated that she was not aware of Complainant raising his harassment claims with other management officials. Moreover, the supervisor stated that the Office of Inspector General conducted an investigation into Complainant's harassment claims and "was returned without action."

The former ambassador stated that during the relevant time she was Complainant's third-level supervisor. With respect to Complainant's allegation that during a meeting on January 22, 2009, the former ambassador told him that he was 'gaming the system,' the former ambassador denied it. Specifically, the former ambassador stated "as background, I saw the need to improve our relationship with Congress and communicate with the members our mission, philosophy and actions. [Complainant] was assigned the specific task to assist the functions efforts in this area. As time went on, I became concerned about a lack of accomplishment in this area and observed that Complainant's office seemed to be highly disorganized. I asked [supervisor] about [Complainant] and was informed that he only works Tuesdays to Thursday and receives therapy in Virginia Beach on Mondays and Fridays. In effect, he was not available for work two days a week."

Further, the former ambassador stated that Complainant requested to meet with her and his supervisor to discuss his concerns. The former ambassador stated "after listening to [Complainant's] explanation of why he could not come to work on Mondays and Fridays (therapy in Virginia Beach where he resides which is 3-4 hours away from Washington DC) along with his self-imposed other work restrictions (he could not commute directly to Washington after therapy), I told him that I would be supporting management in their efforts to return him to duty."

The Chief stated that during the relevant period Complainant "did not tell me that my or anyone else's action constituted harassment and/or hostile work environment for him." Furthermore, the Chief stated that Complainant was not treated differently because of his disability or prior protected activity.

Regarding claim 5, the supervisor stated that during the relevant period, Complainant "was approved for Physical Therapy twice a week for up to 4 hours each session. For any additional time out of the office he was AWOL."

With respect to Complainant's allegation that his absences are due to a job-related injury and that he should not be charged with AWOL but instead approved LWOP, the former supervisor stated "according to MED and HR/ER, he was only cleared to be absent for 8 hours per week."3

Complainant, on appeal, argues that the Agency erred finding no discrimination. For instance, Complainant states "it is unprofessional and unacceptable that in the Final Agency Decision the U.S. Department of State chose to use certain words regarding what I said, testified to, which do not accurately and fully reflect what I said and testified to, especially when referencing official medical documentation provided to me by professional medical providers."

Further, Complainant argues that the Agency "also has required information from me even though I have told the U.S. Department of State orally and in writing that the U.S. Department of State has denied me access to important relevant documents including emails, my personal notes and records, and other documents."

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where an agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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).

In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of his disability or prior protected activity.

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 case an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). We shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability.

Complainant has not shown that the Agency wrongfully denied him reasonable accommodation. Specifically, the record reflects that following an ergonomic study of Complainant's workspace, the Agency provided him an ergonomic chair, a music stand to papers, and a flat arm monitor. Accordingly, we find that Complainant has not established that he was denied reasonable accommodation in violation of the Rehabilitation Act.

We note that Complainant, on appeal, argued that the EEO Investigator conducted an inadequate investigation. We have reviewed Complainant's appellate arguments but nonetheless determine that the Agency properly conducted an adequate investigation of the instant complaint. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.

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 30, 2014

__________________

Date

1 The record reflects that claim 5 was later amended to the instant formal complaint.

2 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.

3 MED is an acronym for Medical Bureau.

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