0120131700
07-22-2015
Complainant v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Complainant
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120131700
Hearing No. 443-2012-00169X
Agency No. FS-2011-00862
DECISION
On March 25, 2013, Complainant filed an appeal from the Agency's March 5, 2013, final order concerning his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 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 him based on his disability and religion.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Engineering Equipment Operator (Helper), WG-5716-05, with the Agency's Engineering and Lands Staff, at the Black Hills National Forest, in Hill City, South Dakota.
On November 8, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against and subjected him to harassment on the bases of religion (Seventh Day Adventist) and disability (one hand) when:
1. on June 9, 2010, he was terminated from his WG-5716-05, Engineering Equipment Operator (Helper) position;
2. On an unspecified date, management was made aware of his need for a reasonable accommodation in the form of a truck equipped with a "knob on the steering wheel," but consistently failed to engage the interactive process, which, on May 18, 2010, resulted in his license to operate a government vehicle being revoked;
3. on April 19, 2010, he was suspended for 14 days without pay (April 19, 2010, to May 4, 2010;
4. on December 9, 2009, he was issued a Letter of Reprimand;
5. on an unspecified date, management was made aware of his need for a reasonable accommodation in the form of a properly fitting glove for his prosthetic hand, but consistently failed to engage the interactive process, instead repeatedly reprimanding him for not wearing a glove; and
6. beginning on an unspecified date and continuing until his termination, he was subjected to additional harassing treatment by his supervisor and co-workers, such as:
a. on an unspecified date, his supervisor told him he "needed to go file for disability";
b. on unspecified dates, he was required to eat his lunch outside in the cold;
c. on unspecified dates, his supervisor posted a daily work plan on his locker where anyone could read it and made him initial and date the tasks on the plan after completing them; and
d. on unspecified dates, when his supervisor was absent, he was required to obtain his daily work plan from his co-workers.
7. on an unspecified date, a co-worker described Complainant's religious beliefs as "bullshit."
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.
Complainant failed to respond to the Agency's discovery requests. The AJ issued an Order granting the Agency's Motion to Compel on October 31, 2012. The Agency filed a Motion for a Decision without a Hearing on December 11, 2012. Complainant did not file any response to the Order to Compel or in opposition to the Agency's Motion for summary judgment. The AJ issued a decision without a hearing on January 23, 2013.
In her decision, the AJ found that the record was sufficiently developed such that a decision could be made. The AJ deemed the Agency's recitation of the facts to be admitted as a sanction for Complainant's failures to respond to the Agency's discovery requests, the Order to Compel, and the Motion for summary judgment. The AJ deemed the following facts admitted: Complainant was appointed to the position of Engineering Equipment Operator Helper on February 15, 2009. Complainant came to the Agency as a Schedule A appointee (and after training in the Job Corps as an equipment operator). Complainant was eligible for noncompetitive conversion to competitive service after 2 years of satisfactory service and his supervisor's recommendation. Complainant is disabled by virtue of his missing left hand. Within 4 months of beginning employment with the Agency, Complainant completed NO FEAR Act and EEO training which included his right to request a reasonable accommodation.
Complainant's supervisor testified that during Complainant's employment he received regular safety sessions and briefings, took 114 safety sessions, and completed 32 online safety sessions. Despite the extensive safety training Complainant underwent, he (Complainant) admitted that he failed to consistently follow safety policies and procedures. On numerous occasions, Complainant was reminded to wear his protective eyewear when operating equipment such as pressure washers or when changing oil in a bulldozer, to wear his high-visibility safety vest when at a road-side worksite, and not to use his cell-phone or his headphones while trying to perform his duties, among other things. In February 2010, Complainant suffered an eye injury when he was not wearing his protective eyewear while running a brush-cutting saw. His supervisor stated that, even after his injury, Complainant was resistant to wearing eye protection.
On December 1, 2009, Complainant was issued a Reprimand for failure to follow instructions when he did not wear his protective eyewear. In March 2010, Complainant's supervisor discussed with Complainant "how serious we are with safety" and the importance of following the safety rules. On April 19, 2010, Complainant was suspended for 14 days for failure to follow instructions with regard to safety equipment between January 20 and March 11, 2010. On May 10 and 11, 2010, Complainant again did not wear protective eyewear, on this occasion while painting. Complainant's supervisor testified that the situation was "very unusual" because Complainant simply refused to comply with the safety requirements, even after his suspension, despite being instructed on the requirements many times, and given opportunities to improve. On May 16, 2010, Complainant's supervisor revoked his government driver's license when he did not maintain his lane while driving, and failed to operate the vehicle safely. On June 9, 2010, Complainant was issued a Notice of Termination during Trial Period for his continued failure to use protective gear, and failure to follow instructions to use the safety equipment.
The AJ further found that Complainant admitted that he had not requested a reasonable accommodation in the form of a knob on the steering wheel, and that he never asked for a properly fitting glove for his partial left hand. Three of Complainant's supervisors testified that they were unaware of any such need for the knob or glove, but that if Complainant had requested those accommodations each likely could have been provided.
As to Complainant's allegations of harassment, the AJ found that Complainant admitted that he had not been required to eat his lunch outside in the cold, but that he had fallen too far behind the bulldozer when walking and therefore did not catch up to it to be able to eat his lunch in the cab. Complainant admitted that his daily work plan was posted on his locker because he "had trouble remembering stuff," and that he sometimes obtained his work plan from co-workers when his supervisor was not present because he had a hard time remembering his tasks. Complainant's supervisors testified that he never raised any concerns of harassment with them, that many employees eat outside at times, and that Complainant had trouble following directions; they denied telling Complainant to go "file for disability."
The AJ first found that as to the claim of harassment, even assuming all the incidents were timely raised with an EEO Counselor, Complainant had not established that the harassment was severe or pervasive, or directed at Complainant on an impermissible basis. Also, even assuming Complainant's supervisor had told Complainant to "get in the disability line" this single incident was not so severe or pervasive so as to establish a claim of harassment based on disability.
The AJ found that Complainant was an individual with a disability, but had not shown that others outside of his protected group were treated more favorably, or that he was meeting the requirements of his position. He did not identify any other employee who repeatedly violated safety procedures but was not disciplined. The Agency articulated its legitimate nondiscriminatory reason for its actions, the discipline and termination, which Complainant did not show were pretext for discrimination. The AJ noted that Complainant did not argue that his disability caused his conduct deficiencies.
As to Complainant's claim that the Agency denied him a reasonable accommodation for his disability, Complainant admitted that he never requested any reasonable accommodation in the form of a knob on the steering wheel or the glove. Complainant provided his own glove, and Agency officials were unaware of the need to provide one for Complainant's use.
The AJ concluded that a decision in favor of the Agency was appropriate. 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. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
Complainant did not submit any statement or brief in support of his appeal. The Agency submitted a brief in opposition to Complainant's appeal in which it argued that the Commission should affirm its final order implementing the AJ's decision.
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). 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).
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 affirm the AJ's conclusion that the Agency did not fail to provide a reasonable accommodation. The parties did not dispute that Complainant is an individual with a disability by virtue of his missing left hand. The AJ found that Complainant did not actually ask the Agency for an accommodation, and that therefore the Agency did not fail to fulfill its obligation to accommodate Complainant's disability.
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 or religion. He has not shown that the events alleged were so severe or pervasive such that a legally hostile work environment was created.
Disparate treatment
To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we find that Complainant has not shown that he was discriminated against as alleged. We assume that Complainant established a prima facie case of religion and disability discrimination for each of his claims. However, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant refused to comply with the safety regulations, despite extensive training, and even after suffering a preventable injury to his eye. The AJ's factual findings as to the Agency's reasons for its actions are supported by the record. We find that Complainant has not established that any of those reasons were pretext for discrimination and that the AJ's decision should be affirmed.
CONCLUSION
Based on a thorough review of the record and in the absence of contentions from Complainant on appeal, we AFFIRM the Agency's final order, which implemented the AJ's finding that Complainant did not establish that he 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
July 22, 2015
Date
2
0120131705
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131705