0120122847
09-23-2014
Complainant v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122847
Hearing No. 541-2011-00185X
Agency No. ARCARSON10AUG03586
DECISION
On June 28, 2012, Complainant filed an appeal from the Agency's May 23, 2012, final order concerning her 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).1 For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the Administrative Judge properly issued a decision without a hearing, and whether she properly found that Complainant had not established that the Agency discriminated against her as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Congressional Administrator, GS-0303-07, in the Agency's Mission Support Element (MSE) at Fort Carson, Colorado.
On September 16, 2010, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (hand/leg/foot/ankle injuries), and age (56) when:
1. Her first-level supervisors, S1 and S2, refused to accommodate her workers' compensation injury limitation from May 11 to August 5, 2010;
2. The terms or conditions of her employment were changed in the following ways:
a) On August 30, 2010, she was locked out of her computer and the computer configuration was changed;
b) On August 25, 2010, her functions and duties were transferred to another agency and she was not informed of the transfer; and
c) On August 23, 2010, her office was cleared out and her personal possessions were placed in cabinets;
3. S2 refused to return her to work due to her non-workers' compensation injury;
4. The MSE Director and S2 directly corresponded with her physician for medical information from July 16-22, 2010;
5. On August 16, 2010, S2 stated that he would no longer provide a wheelchair or close parking and, subsequently gave her an ultimatum to get her own wheelchair and placard or take personal leave until her non-workers' injury was no longer an issue;
6. She was subjected to a hostile work environment from May 11, 2010, until the present [September 2010] by S1 and S2, as evidenced by:
a) On June 2, 2010, S1 threatened her stating he did not care what the doctor wrote on her profile noting she would do her job or face the consequences;
b) On June 7, 2010, S1 denied her request to telecommute;
c) On June 10, 2010, S1 and S2 asked co-workers to provide statements against her concerning her workers' compensation claim;
d) On June 9, 2010, co-workers refused to assist her to the restroom; and
e) S1 and S2 obtained statements from soldiers against her regarding taking breaks, time in and out, parking, and duties.
During the fact-finding conference at the investigative stage, Complainant withdrew the bases of age and sex from her complaint. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
On January 10, 2012, the Agency filed a Motion for a Decision without a Hearing. Complainant filed a statement in opposition to the Agency's Motion on February 8, 2012. The Agency submitted its reply to Complainant's opposition on February 13, 2012. The AJ issued a decision without a hearing in the Agency's favor on May 1, 2012.
In her decision, the AJ found the following relevant facts: On May 11, 2010, Complainant fell into a hole while walking in the parking lot, hurting her hand, wrists, and shoulder. She also claimed that she suffered a foot and leg injury on May 12, 2010, for which she received a doctor's note stating she should "stay off foot." On May 14, 2010, Complainant sought telework as an accommodation. In her request, Complainant acknowledged the temporary nature of her injury. On May 28, 2010, Complainant received an additional limitation which precluded her from using her hands and arms. At this point, she admitted that she could not perform her work. On August 5, 2010, Complainant was detailed to a temporary position which the Agency created to allow her to perform productive work within her limitations. On August 26, 2010, the doctor released her to work, but his release only referenced the hand injury and not the leg injury, so the Agency extended her temporary detail. On September 20, 2010, Complainant's supervisor received a medical clearance and returned Complainant to full duty. Complainant returned to work on September 27, 2010.
In her decision, the AJ found that the record was sufficiently developed such that a decision could be made. She found that Complainant had limitations in walking, and in writing and using her hands, which lasted approximately four months. She found that Complainant failed to establish a prima facie case that she was an individual with a disability. Assuming Complainant was an individual with a disability, the AJ found that Complainant created no disputed facts regarding the Agency's efforts to accommodate her. The AJ noted that Complainant admitted that telework, her preferred accommodation, would not be an effective accommodation. The Agency provided a wheelchair and a parking space during the time that Complainant had medical restrictions on the distance and duration of her walking. Complainant's limitations on her hands and arms limited her from performing her prior position, so the Agency provided Complainant with work to do until she was released from the hand restrictions. The AJ concluded that Complainant had not provided any evidence that the Agency shared her medical condition with her co-workers, beyond her bare allegations. The AJ also concluded that the Agency was not precluded from conducting a workers' compensation investigation merely because such an investigation would involve talking to co-workers or others who had observed Complainant's walking or behavior.
The AJ further found that Complainant had failed to establish a claim of hostile work environment based on disability because she had not shown that the events in question were sufficiently severe or pervasive to create a legally hostile work environment. She found that Complainant's allegations regarded a series of normal business decisions on the part of management, such as allowing another employee to use Complainant's office while she was out of the office, storing her personal possessions, and investigating her workers' compensation claim.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
Complainant submitted a statement in support of her appeal in which she argued that summary judgment was inappropriate, and that there were issues of material fact and credibility of witnesses in question which would necessitate a hearing. She argued that if the Agency had granted her first request to telework in a timely fashion, she would not have injured her hands and wrists through the strain of attempting to walk on crutches due to her leg injuries. She also argued that she should have been given software which would work on her computer and allow her to perform her job functions.
The Agency submitted a brief in opposition to Complainant's appeal in which it argued that the record was well-developed and the complaint was suitable for a decision without a hearing. It disputed Complainant's version of the facts of her complaint, and her characterization of the events. It argued that her claim that she should have been given voice recognition software to use on her computer was not raised at any point earlier in the process, and was inappropriate raised for the first time on appeal. It urged the Commission to find that the AJ's decision was supported by the record, and that the AJ's conclusions that Complainant had not established that the Agency failed to reasonably accommodate her or subject her to a hostile work environment were correct.
STANDARD OF REVIEW
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 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 the 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 Chap. 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").
ANALYSIS AND FINDINGS
Decision without a hearing
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); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (July 11, 2003). In the instant case we find that the AJ's decision to issue a decision without a hearing was appropriate. There were no material facts in dispute such that the AJ would have needed a hearing in order to make credibility findings.
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. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). 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. � l630.2(m); and (3) the Agency failed to provide a reasonable accommodation absent undue hardship. See Enforcement Guidance.
We find that, assuming Complainant is an individual with a disability, the AJ's conclusion that the Agency fulfilled its obligation to accommodate her was correct. While Complainant may have preferred to telework, an individual with a disability is not entitled to the accommodation of his or her choosing, but rather to an accommodation that is effective. We find that the Agency provided a wheelchair, a parking space, and a temporary set of job duties which Complainant could perform for the duration of her medical limitations, until she was cleared to return to full duty.
Hostile work environment
To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or 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 the complainant's 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897. 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994).
We find, based on the facts as found in the record and the AJ's decision, that Complainant has not established a claim of a hostile work environment on the basis of disability. She has not shown that the events alleged were so severe or pervasive such that a legally hostile work environment was created.
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 order, which implemented the AJ's finding that Complainant did not establish that she was discriminated against as alleged.
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
September 23, 2014
Date
1 The Agency argued in its brief in opposition to the appeal that Complainant's appeal was untimely filed. Complainant indicated on the form accompanying her appeal submission that she received the Agency's final order on May 30, 2012. The Agency does not provide any proof, such as signed, certified-mail return-receipt card which to establish that Complainant received the final order on an earlier date. As the Agency carries the burden of proving the untimeliness of the appeal, and it has not done so, we deem the appeal to be timely filed.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122847
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122847