0120111678
03-25-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111678
Hearing No. 420-2009-00206-X
Agency No. 200L05202008104052
DECISION
On February 4, 2011, Complainant filed an appeal from the Agency's January 4, 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 AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the AJ properly issued a decision without a hearing finding that Complainant failed to establish that: (1) on August 1, 2008, because of his disability (hearing impaired), he was denied a job reclassification to WG-09; (2) from June 2, 2008 through October 22, 2008, he was denied a reasonable accommodation by not being provided communication devices, and denied an interpreter during a meeting on October 22, 2008; (3) on October 22, 2008, because of his disability, he was reassigned from performing the duties of a WG-4749-09 maintenance mechanic to a GS-0305-05; and (4) on October 22, 2008, in reprisal for the instant complaint, he was reassigned from performing the duties of a WG-4749-09 maintenance mechanic to a GS-0305-05.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Manual Arts Therapy Assistant, GS-0636-05 at the Agency's Veteran's Affairs Medical Center (VAMC) facility in Biloxi, Mississippi. The following facts were presented as undisputed in the AJ's decision:
Complainant was formerly employed as a Duplicating Machine Operator, under the GS-0636-05 Manual Arts Therapist position description in the Print Shop of the VAMC in Gulfport, Mississippi. The facility was damaged in 2005 by Hurricane Katrina, and Complainant was transferred to the VAMC in Biloxi, where there was no Print Shop. Complainant was assigned to the Preventative Maintenance Shop where he worked for three years maintaining his GS-0636-05 pay grade.
Reclassification and Reassignment
In early 2008, Complainant requested to be reclassified to a Maintenance Mechanic position, WG-4749-09, believing that it was more reflective of the duties he was currently performing. Management maintained that Complainant was not doing the same work as a WG-09 Maintenance Mechanic. While at some point during the course of his employment he was working alongside the Maintenance Mechanics as a helper, WG-09 employees were required to be able to independently completely remove, and re-wire, lighting fixtures, and remove and reinstall toilets and sinks. Complainant's co-worker said that Complainant worked along-side him as a helper, and although he was capable of doing most of the tasks required of the WG-09 Maintenance Mechanic position, he occasionally asked for help with the tasks. Complainant's initial request was denied.
In an effort to resolve the issue regarding position reclassification, management created a Vacancy Announcement targeted at Complainant. The position was posted on or about June 5, 2008. Complainant decided not to apply for the position because it was classified as a WG-06 Maintenance Mechanic Helper, rather than the WG-09 Maintenance Mechanic position he desired. The Agency contends it created the vacancy announcement in order to give Complainant the opportunity to apply for a position with the WG series and enable him to eventually qualify for an open WG-09 Maintenance Mechanic position. Even after being repeatedly urged to apply for the position, Complainant refused to apply. On October 22, 2008, Complainant was reassigned to a Mail Clerk, GS-0305-05 position.
Reasonable Accommodation Requests
On or around June 24, 2008, Complainant requested a specific device designed to convert speech to text as a reasonable accommodation. Sometime during August 2008, the Agency provided Complainant with a Blackberry for communication purposes. Complainant contends that the device he requested was far superior to the Blackberry provided, while the Agency contends that the Blackberry would enable management to more efficiently communicate with Complainant.
After previous discussions with Complainant regarding his work options relating to his GS status and his wage grade work, the Agency wanted to give Complainant notice of his reassignment option in writing. On October 22, 2008, Complainant participated in a meeting solely for the purpose of receiving a copy of a letter concerning the reassignment, which had been previously discussed. Complainant contends that he requested, but did not have, an interpreter present at this meeting. The Agency submits that contrary to Complainant's contentions, the October 22, 2008 meeting was less of a meeting and more of a face to face opportunity to provide Complainant with a copy of the letter detailing the reassignment.
On November 6, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of issues presented above. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's October 16, 2009, motion for a decision without a hearing and issued a decision without a hearing on December 27, 2010.
The AJ held that Complainant failed to demonstrate that he was discriminated against as alleged. Specifically, the AJ held that he evidence did not establish that Complainant was treated any differently with respect to the reclassification because of any protected status. Additionally, the AJ held that the Agency fulfilled its obligations under the Rehabilitation Act with respect to his reasonable accommodation request. The AJ held that Complainant was never reassigned, but mistakenly working outside his classification. Upon recognition of this fact, the duties which Complainant was improperly performing were removed from him. Complainant failed to establish that he was subjected to any adverse employment action which would give rise to a reprisal claim. 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 erred when he determined that the Agency did not subject Complainant to discrimination when: it did not provide Complainant with an interpreter for the October 22, 2008 meeting; delayed providing Complainant with a communication device; decided not to classify Complainant's job at the WG-09 level; and reassigned Complainant. Complainant asks that the Commission grant his appeal and reverse the AJ's decision, and the Agency's final order. Complainant also requests that the Commission remand his file for a hearing as he requested in his initial EEO complaint.
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies that its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
Failure to Accommodate
An agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. Enforcement Guidance - Reasonable Accommodation. The Rehabilitation Act prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). "[T]he word 'accommodation' ... conveys the need for effectiveness." Id. "An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Enforcement Guidance - Reasonable Accommodation.
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
Reclassification and Reassignment
Assuming, arguendo, that Complainant is a qualified individual with a disability, pursuant to the Rehabilitation Act, and that he established a prima facie cases of discrimination based on disability, we concur with the AJ's finding that the Agency articulated a legitimate, non-discriminatory reason for denying the job reclassification and the reassignment, and that Complainant has not shown that the Agency's reasons for the actions were pretextual. Specifically, the Agency articulated legitimate business reasons for each of the actions it took, which Complainant alleged were discriminatory. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
We concur with the AJ's finding that Complainant was not doing the same work as a WG-09 Maintenance Mechanic. Additionally, although a Vacancy Announcement was created, and issued, which management thought more accurately reflected the duties he was performing, Complainant declined to apply for it because the position was classified as a WG-06 Maintenance Mechanic Helper position. We find that Complainant failed to establish that any conduct on the part of the Agency with respect to the position reclassification, or the reassignment, was based on discriminatory animus.
Reasonable Accommodation
The Commission acknowledges that the suggestions and preferences of an employee seeking reasonable accommodation are highly relevant and must be considered. See, e.g., Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Mar. 1, 1999) (web version), at 6. However, an agency is not required to provide the precise reasonable accommodation an employee wants, so long as the agency provides a reasonable accommodation that is effective. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Mar. 1, 1999) (web version), at 8. It is the agency providing the accommodation which "has the ultimate discretion to choose between effective accommodations ...." 29 C.F.R. � 1630.9 (app.).
There is no evidence in the record to support the contention that the Blackberry provided to Complainant was an inadequate reasonable accommodation. Complainant has a hearing impairment. The Blackberry assisted Complainant by enabling him to communicate with Management through messaging, even when he did not have access to an interpreter.
With respect to the allegations for an interpreter at the "meeting" where Complainant received a letter concerning the reassignment, this "meeting" was to involve no discussion. It was established that a separate meeting would be scheduled if Complainant needed to discuss anything regarding the letter. We note that there was no request for a follow up meeting.
Reprisal
Additionally, we find that although Complainant has established that he engaged in prior EEO activity, he has not demonstrated that he was subsequently subjected to adverse action by the Agency. Complainant was never reclassified into a WG-09, but was always a GS-05. While given the opportunity to do so, Complainant never applied for the WG-06 position created and advertised for him, in order to more properly classify the type of work he was doing. The only alternative was to move Complainant to another open GS-05 position. Based on these facts we concur with the AJ's finding that Complainant is lacking the adverse action to establish a prima facie case of discrimination based on reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to demonstrate he was subject to discrimination as alleged; the Agency's final order adopting this decision therefore is AFFIRMED.
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
__3/25/15________________
Date
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0120111678
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111678