0120130755
09-11-2015
Complainant v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130755
Hearing No. 430-2012-00148X
Agency No. 2004-0005-2011103080
DECISION
Complainant timely filed an appeal from the Agency's October 31, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's Final Order.
ISSUES PRESENTED
The issues before the Commission on appeal are (1) whether an Equal Employment Opportunity Commission Administrative Judge's (AJ's) issuance of a Decision without a Hearing was appropriate; and (2) whether Complainant established discrimination on the bases of age (60), reprisal, and disability (traumatic brain injury and mood disorder) when the Agency proposed her removal, forcing her to retire from federal service, an effective constructive discharge, and denied a reasonable accommodation.1
BACKGROUND
During the period at issue, Complainant worked as an Information Specialist, GS-11 at the Agency's Medical Center in Perry Point, Maryland. In this capacity, she was responsible for fixing and removing hardware such as PC monitors, printers, which required her to physically lift equipment and crawl under desks. Complainant's immediate supervisor was the Operations Supervisor for the Office of Information and Technology (S1). Her second-level supervisor was the Chief Information Officer.
On August 11, 2011, Complainant filed a formal complaint in which she alleged discrimination on the bases and issues identified as "Issues Presented" above. The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before AJ or, alternately, an immediate Final Decision based on the ROI. Complainant timely requested a hearing. Therefore, her case was forwarded to the appropriate EEOC District Office and assigned to an AJ.
On August 22, 2012, the Agency filed a Motion for a Decision without a Hearing (MDH), which Complainant opposed. Over Complainant's objections, the AJ assigned to the case granted the Agency's MDH. In granting the Agency's MDH, the AJ found the following material facts to be undisputed.
1. On December 8, 2008, Complainant incurred an on-the-job injury when she opened a laboratory door and heard a "pop" in her left shoulder. Thereafter, she was placed on light-duty assignment. She submitted a claim to the Department of Labor, Office of Workers' Compensation Programs (OWCP), which was accepted on May 18, 2009.2
2. Complainant also injured herself at work on April 2, 2009, after slipping on a wet floor and hitting her head while exiting an elevator. Complainant submitted an OWCP claim and was out of work from April 3 through November 30, 2009. Complainant was on leave without pay (LWOP) from May 18 to November 30, 2009.
3. On November 30, 2009, Complainant was medically released and returned to work in a light-duty capacity commensurate with her restrictions, which precluded her from bending, lifting, twisting, stooping, and crawling under desks.
4. Two weeks later, Complainant experienced a third injury and again was out of work "trying to get things straight." Complainant indicated that her condition was unclear to her or her doctors. During this period, because Complainant had been cleared for work, the Agency mailed two letters to Complainant explaining that she needed to return to work to fulfill her responsibilities. In December 2009, OWCP sent Complainant a permanent placement job offer, which allowed her to work within her restrictions. Complainant declined the offer. The Agency provided options to Complainant if she were unable to return to work. Complainant asserted that she wanted to be placed in "limbo status" until she returned to work or retired.
5. The ROI revealed that Complainant took two and one-half days of sick leave and nine days of annual leave in December 2009; 12 days of LWOP and 3 days of sick leave in January 2010; 18 of LWOP days in February 2010; 21 days in March 2010; 19 days in April 2010; 20 days in July 2010; and 20 days in August 2010.3
6. By notice dated August 2, 2010, the Agency proposed Complainant's removal for excessive absenteeism. The Agency noted that it needed work performed in the position Complainant held. In order to fill that need, Complainant's position had to be vacant.
7. The Agency's action did not affect Complainant's OWCP claim. The Agency stated that it did not seek to terminate Complainant but only to remove her from the position she held.
8. In a November 2010, meeting, Complainant advised S1 that she intended to retire and provided a proposed retirement date in December 2010. At that point, the Agency halted the removal action in order to allow Complainant time to retire. After several months passed and Complainant did not retire, the Agency mailed Complainant a proposed removal action dated March 29, 2011. At the time of the letter, Complainant had been out of work for 122 days.
9. On June 3, 2011, three months after receiving the proposed removal action, Complainant retired from federal service. She asserts that she was forced to retire in lieu of termination.
On September 20, 2012, the AJ issued a decision in which she found that Complainant did not establish discrimination as alleged. On October 31, 2012, the Agency issued a Final Order in which it adopted in full the AJ's findings. Complainant thereafter filed this appeal. Neither party submitted contentions on appeal.
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 Chap. 9, � VI.B. (Aug. 5, 2015) (providing that both an AJ's determination to issue a decision without a hearing pursuant, and the decision itself, will 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 or reject the AJ'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
Initially we consider whether it was appropriate for the AJ to have issued a decision without a hearing on the record in this case. 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.
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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find that the record is adequately developed, that no genuine issues of material fact remain, and that no fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. Thus, we find that the AJ's Decision without a Hearing was appropriate.
Proposed Removal/Constructive Discharge
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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. Second, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We will assume, without so finding, that Complainant has established prima facie cases of discrimination with respect to her age, disabilities, and prior EEO activity.
We now turn our attention to whether the Agency articulated a legitimate, nondiscriminatory reason for proposing Complainant's removal from her position, which allegedly forced her into retirement, amounting to what Complainant believes to be a constructive discharge. Burdine at 253. The Agency stated that it proposed Complainant's removal due to excessive absenteeism. The Agency supported its reasons by providing Complainant's time, attendance, and leave records. We find that the Agency has met its burden to state legitimate, nondiscriminatory reasons for its action.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus because of her age, disabilities or for engaging in prior EEO activity.
To demonstrate pretext, Complainant asserts that the Agency's proposed removal action forced her to retire from federal service. To show that the Agency's proposed removal action culminated in a constructive discharge, Complainant has to prove by a preponderance of the evidence that Agency's conduct gave rise to working conditions so intolerable as to force a reasonable person in her position to resign. See Cullors v. Dep't of Defense, EEOC Appeal No. 01A41560 (Jun. 27, 2006).
A constructive discharge claim fails if Complainant cannot establish that the working conditions to which she was subjected were so objectively hostile or abusive such that a reasonable person would have found them hostile or abusive. Upon review, we find that Complainant did not present sufficient evidence to establish that she was subjected to intolerable working conditions which compelled her retirement. That is especially so in this case, where the Agency halted the proposed removal action once Complainant indicated her intent to retire. Accordingly, we find that Complainant failed to carry her burden.
Disability Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. In order to establish that she was denied a reasonable accommodation, Complainant must show that (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002) (Guidance on Reasonable Accommodation). For purposes of further analysis we will assume, without so finding, that Complainant is an individual with a disability entitled to coverage under the Rehabilitation Act.
In her response to the Agency's MSJ, Complainant stated that she "should be entitled to recovery time as an accommodation." Agency's MSJ at 2. The record reveals that Complainant was out of work for a cumulative two years, that the Agency needed to fill her position so that the duties required of the job could be executed, and that, in order to fill Complainant's position, there had to be a vacancy for that particular job. The record further reveals that Complainant requested to be placed in "limbo status," with no expected date of return.
Permitting the use of accrued paid leave or unpaid leave is a form of reasonable accommodation. Guidance on Reasonable Accommodation. An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees. Id.
In this case, Complainant, presumably, expected to be provided unpaid leave, with no expected date of return, as an accommodation for her disabilities. However, agencies are under no obligation to provide a reasonable accommodation when an employee has been out of work for two years with no expected date of return. Cf. Dixon v. U. S. Postal Serv., (May 10, 2013) (finding no grounds for unlawful discrimination on the basis of disability where complainant had been out of work for two years with no foreseeable return date).
To the extent the parties believe that Complainant could not be accommodated in her job as an Information Specialist, the Agency may have been required to consider the availability of a reassignment as an accommodation. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his current position; or (2) all other reasonable accommodations would impose an undue hardship. Guidance on Reasonable Accommodation.
To establish entitlement to a reassignment, a vacant, funded position must have existed during the relevant time period or was likely to open up. Id. In this case, Complainant was offered reassignment, through OWCP, to a vacant, funded position which met her restrictions and for which she qualified, but Complainant declined the offer. Therefore, we cannot, based on the record before us, find the Agency liable to Complainant for denial of reasonable accommodation.
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's issuance of a Decision without a Hearing was appropriate, and that Complainant did not establish discrimination when she was issued a proposed removal allegedly forcing her to retire and/or be constructively discharged, or denied a reasonable accommodation. Accordingly, the Agency's Final Order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 11, 2015
Date
1 The record of evidence indicates that Complainant, her representative, and the AJ viewed the proposed removal and constructive discharge claim as two separate issues but our de novo review of the record reveals that these two issues are more appropriately addressed as one claim. Specifically, the Commission has held that where an Agency action allegedly results in the denial of a term, benefit, or privilege of employment, the action, in this case, a constructive discharge, merges with the proposed action and states a claim. See Charles v. Dep't of the Treas., EEOC Request No. 05910190 (Feb. 25, 1991). Upon the merger of claims, the specific claim regarding the proposed action is dismissed and subsumed into the Complainant's constructive discharge claim. See Taylor v. U.S. Postal Serv., EEOC Appeal 01975649 (Sept. 18, 1998). We will, however, consider the proposed action as background evidence in addressing Complainant's constructive discharge claim. Further, Complainant did not expressly raise disability accommodation as a claim but a fair reading of the record reveals her belief that she was denied an accommodation for her medical conditions. See Complainant's Response to the Agency's Motion to Dismiss, or in the Alternative, Motion for a Decision without a Hearing at 2 (stating that Complainant is entitled to recovery time as an accommodation).
2 The Administrative Judge's September 20, 2012, decision mistakenly stated the date of OWCP acceptance as May 18, 2008. We find this error to be immaterial to the outcome of this case.
3 Including additional leave time used by Complainant in 2010 and 2011, discussed below, altogether Complainant used 3,777 hours of Leave without Pay (LWOP), 328 hours of annual leave, and 110 hours of sick leave during the period December 8, 2008, through June 3, 2011.
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0120130755
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130755