0120120645
02-06-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120120645
Hearing No. 530-2007-00423X
Agency No. 056554001152
DECISION
On November 17, 2011, Complainant filed an appeal from the Agency's October 11, 2011, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mechanical Engineer, GS-13, in the Alterations Installation Team, Naval Surface Warfare Center - Carderock Division, Naval Ship Systems Engineering Station in Philadelphia, Pennsylvania.
In 1984 Complainant was injured in a non-work related automobile accident and sustained a lower back and spinal injury, including a herniated disk at L5-S1. Complainant's medical records indicate that in the years following this injury there were degenerative changes in Complainant's lower back, which resulted in a lengthy leave of absence from work and repeated participation in pain management programs. In 1987 Complainant was taken from work to the hospital where he was diagnosed with phlebitis in his left leg, which led to additional lengthy leaves of absences from work. The Agency accommodated Complainant's disabilities by allowing him to book two plane seats during work related travel, through the use of handicap parking spaces, and by providing an ergonomic chair. Medical documentation shows that Complainant continued to be treated for significant pain from these conditions throughout the 1980s and 1990s.
In 1997 Complainant sustained another injury to his lower back when a chair he was sitting on broke while he was working. Complainant's medical documentation shows that this incident resulted in a moderate sized herniation at the L4-5 level. Medical documentation shows that this caused Complainant extreme continuous pain up to the time of this complaint.
In 2001, Complainant was permitted to work from home on several occasions due to his medical condition. On or around June 22, 2004, Complainant requested that he be able to telework on a regular and recurring basis as a reasonable accommodation. Complainant's second level supervisor allegedly told him that if the Department of Labor authorized him to participate in physical or aquatic therapy she would approve a telework agreement.
From February to April 2004, Complainant began having difficulty finding handicapped parking spots available in the parking lot. In April 2004 Complainant notified his first line supervisor of this issue, and the supervisor asked facilities if they planned to add handicapped spots on the south side of the lot.
On June 22, 2004, Complainant submitted an informal telework request to his supervisor, requesting that he be allowed to come in as late as 10:00 am. His request was denied.
On December 21, 2004, Complainant sustained an injury while on work related travel. Following the injury Complainant was unable to work full-time and received continuation of pay for 45 days.
In February 2005, Complainant again requested telework as an accommodation during a trial period from February 2005 through April 2005. He requested that he be allowed to work from home from 6:30 am to 10:30 am, engage in physical therapy from 11:00-11:30 am, and work at the duty station from 2:00 - 6:00 pm. Complainant's physicians supported this request in a note dated February 15, 2005, which stated that Complainant should work half a day in light duty status and half a day at home with therapy daily as tolerated.
On February 23, 2005, the Agency denied Complainant's request to work from home. Complainant's supervisor told him that his duties as a submarine program manager required him to have extensive face to face contact with other management officials and coworkers, as well as frequent and irregular need for access to sensitive/classified material that cannot be removed from the office, and the need for scheduled and emergency overnight work-related travel.
Complainant contacted an EEO Counselor on April 11, 2005.
On November 1, 2005, Complainant submitted another written request to telework as an accommodation. He later amended the accommodation request to include his start time to begin as late as 10:30 am, up to 25 percent of his time would be work at home in a regular and recurring telework status, and that all other approved accommodations (ie - travel, ergonomic chair, and handicap parking spot) would remain in effect. Management requested medical documentation, and on March 15, 2006, Complainant provided medical documentation from his doctor who identified Complainant's medical condition as degenerative disk disease, specifically herniated nucleus puposis at L4-5 and L-5-S1 as well as right leg radiculopathy. On August 3, 2006, Complainant's supervisor denied Complainant's request and stated that Complainant was not an individual with a disability, however, he agreed that Complainant could come in as late as 10:30 am without taking leave if he called prior to 9:00 am to inform the supervisor that he would be coming in late. Complainant stated that this was not an effective accommodation.
Complainant also alleged that he had been subjected to ongoing harassment by a coworker and management refused to do anything about it. Specifically, in March 2001 Complainant learned that his wife was having an affair with his coworker. The coworker allegedly began spreading rumors about Complainant at work, including information about his medical condition and his ability to engage in sexual intercourse and have children, and Complainant brought this to management's attention. Complainant alleged that management did nothing because "it was not a work issue" and told Complainant to "grow up." The harassment allegedly escalated over the years to threatening behavior and eventually the coworker allegedly stated that he would kill Complainant with his shot gun. The Agency originally said it was going to suspend the coworker for the threat, but a management official later reversed the Agency's decision finding that the coworker "didn't really mean it" when he said he would kill Complainant.
On May 25, 2005, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (degenerative disk disease of lumbar spine, right leg radiculopathy) under Section 501 of the Rehabilitation Act of 1973 when1:
1. On February 25, 2005, his request for telework was rejected and he was not accommodated for his disability;
2. Beginning in April 2004 and ongoing, he had difficulty finding a handicap parking spot; and
3. Beginning in 2001 and ongoing, Complainant was harassed by another employee and his supervisors did not act on this issue.
Complainant also alleged that the Agency discriminated against him on the bases of disability (degenerative disk disease of lumbar spine, right leg radiculopathy) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
4. On August 3, 2006, he was issued a decision denying his request for an accommodation.
The Agency initially dismissed Complainant's complaint, finding that Complainant previously raised the matter in the negotiated grievance process. In Ferchau v. Navy, EEOC Appeal No. 0120055118 (Oct. 17, 2007), the Commission reversed the Agency's dismissal and remanded it for an investigation.
Subsequently the Agency investigated the complaint and 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. Over Complainant's objections, the AJ assigned to the case granted the Agency's December 30, 2010, motion for a decision without a hearing and issued a decision without a hearing on August 25, 2011. 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 contends that the AJ's issuance of a decision without a hearing was not appropriate in this case. Complainant asserts that the record is not adequately developed for a summary judgment decision. Complainant asserts that he is substantially limited in numerous major life activities, and the Agency failed to reasonably accommodate those disabilities. Complainant also asserts that the Agency ignored harassment that he was subjected to for numerous years from a coworker.
In opposition to the appeal, the Agency contends that the AJ properly issued a decision without a hearing. The Agency asserts that Complainant is not an individual with a disability, and that it did offer him a reasonable accommodation. The Agency asserts that Complainant has offered no new facts or legal arguments that justify overturning the AJ's decision.
ANALYSIS AND FINDINGS
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 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 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).
For the following reasons, we find that the issuance of a decision without a hearing was not appropriate in this complaint.
Reasonable Accommodation Claims
After a careful review of the record, we find that the AJ erred when she found there were no genuine issues of material fact in dispute with regard to Complainant's claims that the Agency violated the Rehabilitation Act when it denied his reasonable accommodation requests.
The Commission notes that the Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities. Under the Commission's regulations, an Agency is required to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. See 29 C.F.R. �� 1630.2 (o) and (p).
This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2005, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
Under the pre-ADA Amendments Act framework, Complainant, as a threshold matter, must establish that he is a person who has, has a record of, or is regarded as having a physical or mental impairment which substantially limits one or more of his major life activities, i.e., caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. � 1630.2(j). An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner, or duration under which an individual can perform a major life activity. 29 C.F.R. � 1630.2(j).
We note that impairments do not have to be permanent to rise to the level of a disability. Temporary impairments that take significantly longer than normal to heal, long-term impairments, or potentially long-term impairments of indefinite duration may be disabilities if they are severe. See Abeijon v. Dep't of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012) (citing Executive Summary: Compliance Manual Section 902, Definition of the Term "Disability").
Here, the AJ found that Complainant was not an individual with a disability because he failed to establish that he was substantially limited in a major life activity. The AJ focused on Complainant's statement that he can drive a car to and from work, walk around his work area, and take care of his personal needs.
However, documentation in the record indicates that there may be material facts in dispute with regard to whether Complainant was substantially limited in a major life activity. For example, Complainant stated in his investigatory declaration that his bilateral radiculopathy causes chronic severe pain, severe muscle spasms, as well as weakness and numbness in both of his legs, lower back, abdominal and inguinal canal regions. ROI II at 246. Complainant stated that this condition significantly affects his ability to walk, sit, stand, lift, work, and sleep, and because of nerve damage he is unable to do any of these activities for a prolonged basis. Id. Complainant stated that because of the chronic pain he cannot sleep through the night, and because his disability is exacerbated by prolonged activity, if he is able to fall asleep during the night it has the consequence of exacerbating his condition and causes him to experience heightened pain and muscle stiffness each morning. Id. Complainant also stated that the bilateral radiculopathy results in chronically impinged nerves that affect the iliopsoas muscles which tilt the pelvis when walking, and that he must go through a one to two hour long stretching regimen each morning just so he is able to walk while standing vertically. Id.; Response to Interrogatory No. 10. Complainant has had surgery on his back and numerous epidural steroid injections to try to release the severe pain. Response to Interrogatory No. 17. After a review of the entire record, we find that a hearing is necessary to determine whether Complainant is substantially limited in a major life activity.
If Complainant is able to establish that he is an individual with a disability, we then must look at whether the Agency failed to reasonably accommodate his disability. In a case of failure to reasonably accommodate a disability brought under the Rehabilitation Act, the Complainant has the initial responsibility of showing that a suggested accommodation is "reasonable" (i.e. that is generally plausible in the job being performed by the individual). See US Airways, Inc. v. Barnett, 535 U.S. 391 (2002); EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Number 915.002 (Oct. 17, 2002). While this is not a high burden for the Complainant, it is an initial plausibility threshold that the Complainant must meet.
Once the Complainant shows that the requested accommodation is plausible, the burden then shifts to the Agency to show whether the accommodation, even if plausible, would nonetheless impose an undue hardship (i.e. a significant difficulty or expense) on the operations of the Agency. See Harge v. Dep't of Veteran's Affairs, EEOC Appeal No. 0120111521 (Dec. 4, 2014).
Complainant requested as an accommodation that he be allowed to work from home for four hours in the morning, do physical therapy for an hour, then come into the office for four hours in the afternoon. The Agency allowed Complainant to work from home in 2001 because of his medical condition. That is sufficient evidence to show that the accommodation requested was plausible for the job that he performed. See Harge, supra.
The next question is whether the requested accommodation would impose an undue hardship on the finances or operation of the Agency. Harge, supra. Here, the undue hardship analysis appears to turn on whether the Complainant could sufficiently interact with other managers and employees while working from home, whether Complainant could have worked from home on tasks that did not involve sensitive/classified material that cannot be removed from the office, and whether he would be able to travel.
The Agency contends that Complainant must be present in the office to interact face-to-face with managers and employees. Complainant counters that he can interact with them via email, and any meetings could be scheduled in the afternoon when he was in the office. There is no evidence in the record from the Agency indicating exactly why these interactions had to be face-to-face, or why they could not be scheduled during the afternoon hours. Further, the record is not clear as to whether there were tasks that Complainant could perform at home in the mornings that did not involve sensitive or classified material. Complainant also contends that the telework arrangement would have no impact on his ability to travel. The Agency does not explain why it allowed Complainant to work from home in 2001, but would not permit him to work from home at the time of this complaint. As a result, we find there are genuine issues of material fact in dispute.
Further, the record shows that while Complainant was denied telework, he was eventually offered the opportunity to come into work as late as 10:30 without being charged leave. There is not sufficient evidence in the record to establish whether or not this is an effective accommodation that would allow Complainant to perform the essential functions of his position. For example, it is not clear in the record if this schedule arrangement would have resulted in Complainant working later in the day, which is when his pain increases and he has significant difficulty walking after prolonged activity. As a result, this is a genuine issue of material fact in dispute.
With regard to the lack of handicap parking, the Agency was aware that Complainant needed parking close to the building as a reasonable accommodation and provided it to him for years until the number of individuals needing handicap parking outnumbered the number of handicap parking spots available. The record is not clear as to whether Complainant's supervisor took any effective steps to ensure that Complainant continued to receive this accommodation. The record only indicates that the supervisor contacted facilities one time asking if they planned to create more parking spots. If this was the supervisor's only effort to obtain a handicap parking space for Complainant, it likely was not an effective attempt to reasonably accommodate his disability. This is a genuine issue of material fact in dispute that requires a hearing.
Harassment Claim
Complainant alleged that beginning in 2001 and ongoing he had been subjected to harassment by a coworker and management did nothing about it. Complainant alleged that the coworker began spreading rumors about Complainant at work, including information about his medical condition and his ability to engage in sexual intercourse and have children, and eventually culminated in threats against Complainant.
After a review of the AJ's decision without a hearing, it does not appear that this claim was addressed in the AJ's analyses and findings. We find that there are genuine issues of material fact in dispute as to whether Complainant was subjected to harassment based on a protected basis, and if he was, whether the Agency is liable for the harassment.
There are many genuine issues of material fact in dispute in this complaint, and as a result, we find that the AJ's issuance of a decision without a hearing was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the complaint for a hearing.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC Philadelphia Office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
02/06/2015
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2005, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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