0120071910
01-06-2010
Daniel S. Jimenez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Daniel S. Jimenez,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 0120071910
Agency No. HS01CBP000382
DECISION
Complainant appeals to the Commission from the agency's decision dated
February 21, 2007, finding no discrimination. In his complaint, dated
February 7, 2001, complainant, a former probationary employee as a Customs
Technician, GS-5, in the Trade Operations Branch III, in Elizabeth, New
Jersey, alleged discrimination based on race (Asian/Pacific Islander),
disability (claustrophobia), and in reprisal for prior EEO activity when:
(1) from September 2000, through January 2001, the agency harassed him
with regard to his working conditions, including verbal abuse, work
assignments, and his office location; (2) from September 2000, through
January 2001, management did not provide reasonable accommodation for his
disability; and (3) on January 12, 2001, his employment was terminated
during his probationary period.
After completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ).
Subsequently, on January 22, 2003, the AJ issued a decision, Hearing
No. 170-A2-8042X, after a partial hearing1, finding no discrimination.
The agency issued its final action implementing the AJ's decision.
Upon complainant's previous appeal, the Commission, in EEOC Appeal
No. 07A30102 (December 22, 2004), reversed the agency's final action
and remanded the case back to the agency for a hearing. Specifically,
the Commission found no discrimination based on complainant's race,
but found there was a disputed issue concerning the remaining issues in
his complaint.
Accordingly, the agency requested a hearing before an AJ, but complainant
withdrew the hearing request. The agency then issued the instant decision
concluding that it asserted legitimate, nondiscriminatory reasons for
its actions, which complainant failed to rebut. It is noted that since
the agency's finding of no race discrimination was previously affirmed,
we need not address this matter in this case.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged actions. With regard to claim (1), the agency noted that
since complainant was hired as a probationary employee in January 2000,
he had a number of conflicts with different coworkers and disagreements
with different supervisors concerning their instructions and authority.
After a review of the record, we find that these actions were not
sufficiently severe or pervasive to alter the conditions of complainant's
employment such as to state a claim of harassment. In addition, we also
find one derogatory remark made by an Acting Lead Aide on December 21,
2000, although inappropriately referring to his medical condition in a
negative light, was not sufficient to support complainant's harassment
claim without any further evidence. Management stated that complainant's
reassignment was not based on any discrimination but it was the result
of him being bumped by a more senior grade 5 employee in the annual
bidding process. Complainant does not dispute this contention.
With regard to claim (2), complainant claimed that when he initially
learned from his coworker that he would be reassigned from his position
to one in the cashier's office, he spoke to management on September 14,
2000, and requested that due to his disability, he not be assigned to the
cashier's office "since the cashier's office was an enclosed sealed room
with what he felt was inadequate ventilation." On September 18, 2000, the
agency, in response, requested complainant provide medical documentation
of his disability. On October 4, 2000, complainant submitted a note from
his family physician, whom he referred to as a good friend, stating that,
"[Complainant] has been disabled since 1995 because of post traumatic
stress syndrome secondary to a motor vehicle accident manifested by phobia
of driving and claustrophobia among other symptoms. He is doing alright.
He states that he feels claustrophobic to work in a small enclosed space
without windows. This will precipitate his symptoms. It is my medical
opinion that if he works in a small enclosed space without windows it
may precipitate and aggravate his medical condition."
The agency delayed the actual reassignment for 14 days and, again,
requested sufficient medical documentation. Specifically, the agency
requested information from complainant's physician explaining his
diagnosis, his medical history, and specifically asked how "will the
medical condition be impacted if he sits in an office (24' x 24' overall
with a 12' x 12' room cordoned off in one corner) which comfortably
accommodates four desks. This office has a cashier's window, which
looks onto a public greeting area." Complainant failed to produce the
requested reasonable medical information from his physician.
Thus, on October 23, 2000, complainant was reassigned to and began
working in the cashier's office. On November 6, 2000, complainant
requested accommodation again. On November 13, 2000, he was returned
outside of the cashier's office and was given another 14 days to submit
medical documentation. The record contains two notes entitled "Follow Up
Visit" from a neurologist. The first note, in relevant part, states that
complainant was seen on October 30, 2000, and has a history of "Decreased
concentration and memory same. Nervousness same. Has occasional panic
attacks." The note continues to list under "Plan" that "Patient does
not want psychiatric consultation. Return to office in four weeks."
The second "Follow Up Visit" states complainant was seen on November
22, 2000, and notes, in relevant part, "At work has been assigned to a
small room with ventilation. As a result feels more anxious, nervous
and has more panic attacks." Under history it is noted that "Decreased
concentration and memory worse. Nervousness worse. Panic attacks
worse. Feels agitated. Feels short of breath and has upset stomach."
The note continues to list under "Plan" that complainant is to consult
with psychiatry, was prescribed Xanax, and will return to the office in
four weeks. We find this insufficient medical documentation to allow
the agency to determine whether complainant was disabled and thus,
entitled to a reasonable accommodation.
The record contains a letter from the agency to complainant dated November
27, 2000, noting that his physician's response "does not clearly address
all the questions as to your ability to function in your new workstation."
The letter allows complainant until December 4, 2000, to supply the
requested medical documentation. Complainant failed to comply and
on December 4, 2000, complainant was reassigned back to the cashier's
office.
Based on the foregoing, we find that complainant failed to provide
the agency with the requested necessary medical documentation despite
ample opportunity to do so. The agency stated, and complainant
acknowledged, that during the relevant time period, complainant was,
nevertheless, allowed to take liberal breaks from the office. Although
complainant claimed that the agency was in possession of a 1995 Social
Security Administration Decision which specified that he suffered from
post-concussion syndrome and adjustment disorder, we find this document
insufficient to establish the requisite medical documentation requested
by the agency during the relevant time period at issue.
It appears that at the time he filed the instant complaint,
complainant, for the first time, submitted two additional doctors'
notes. In a note dated January 5, 2001, a neurologist/electro-diagnosis
indicated that "patient was advised not to return to work . . . while
he will be reevaluated. In a note dated February 5, 2001, another
psychiatrist/neurologist indicated that, "At your request, this is to
advise you that you are under my care. This is also to advise that if
you need a narrative report, the fee is $250." We find these notes not
only untimely but also insufficient to establish the medical documentation
requested by the agency.
With regard to claim (3), the agency stated that complainant was
terminated based on his four month and eight month reviews and because
he consistently failed to follow instructions and was argumentative.
Specifically, complainant's supervisor stated that she decided to
recommend terminating complainant because of problems in his performance
that were noted at the four-month evaluation and continued through the
eight-month evaluation period. The supervisor also indicated that
complainant typically blamed his problems and errors on others and
continued to have difficulties with work assignments after eight months
in the position.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant failed to show that
he was denied a reasonable accommodation or that any agency actions were
motivated by discrimination or retaliation. With regard to his claim of
harassment, we find that complainant failed to establish the conduct in
question was sufficiently severe or pervasive to constitute harassment
or that it was related to any protected basis of discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
1/6/2010
__________________
Date
1 The hearing took place on December 4, 2002, and the AJ heard the
testimony of certain of complainant's witnesses in opposition to the
agency's previously filed motion for a decision without a hearing.
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2
0120071910
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013