0720150039
06-05-2017
Dino B.,1 Complainant, v. Victoria A Lipnic,2 Acting Chair, Equal Employment Opportunity Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Dino B.,1
Complainant,
v.
Victoria A Lipnic,2
Acting Chair,
Equal Employment Opportunity Commission,
Agency.
Appeal No. 0720150039
Agency No. 2013-0024
DECISION
Simultaneous with its August 21, 2015, final order, the Agency initiated an appeal pursuant to 29 C.F.R. � 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an independent contract Administrative Judge's (AJ's)3 finding of denial/delay of reasonable accommodation in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission VACATES the Agency's final order with respect to Complainant's claim of denial/delay of reasonable accommodation.
ISSUE PRESENTED
With respect to Complainant's denial/delay of accommodation claim, whether there is a genuine issue of material fact and whether the record has not been adequately developed for summary disposition, such that the AJ's issuance of a decision without a hearing was not appropriate.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Civil Rights Analyst at the Office of Federal Operations, Federal Sector Programs, at the Agency's Headquarters in Washington, D.C. Complainant's official first day in this position was November 5, 2012, but he occupied a detail position in the Agency's Phoenix District Office until he relocated to Headquarters. Complainant reported to Headquarters on or around December 27, 2012.
Soon after he was hired, Complainant sent an introductory email to his first-line supervisor (S1) on November 2, 2012, stating that he would need reasonable accommodations to perform his duties. S1 consulted with the Disability Program Manager (DPM), who provided S1 with EEOC Form 557 (Confirmation of Request for Reasonable Accommodation). S1 emailed EEOC Form 557 to Complainant on November 19, 2012.
On December 11, 2012, Complainant emailed DPM his request for the following accommodations:4
1. An office that "provides a reduced distractive environment and that is near an ADA accessible restroom;" and
2. An alternative work schedule - specifically a "4/10 with slide and glide" that allows him to arrive between 6:30-7:30 a.m. and leave between 5:00-6:00 p.m.
Complainant also provided documentation of the accommodations that he had in his former position with the Agency as a Bilingual Investigator at the Phoenix District Office, which were granted in May 2011 by DPM's predecessor. Among other things, on May 3, 2011, Complainant was granted the ability to "use a vacant intake office during weekly PCHP5 reviews," the ability to work a 4/10 schedule with Mondays off, and a flexible work schedule allowing him to arrive between 6:00-7:00 a.m.
On December 17, 2012, DPM emailed Complainant to inform him that he needed to submit medical information to support some of his requested accommodations. When Complainant stated that he had already provided medical documentation for his earlier request for accommodations, DPM replied that when she located his file, she would find his medical documentation.
When Complainant arrived at Agency headquarters, he used an office for his first two days of work before S1 informed him that he could not use the office because it belonged to another employee who was currently on leave. On December 27, 2012, after arriving at Headquarters, Complainant met with DPM. After the meeting, DPM emailed Complainant EEOC Form 557 and a medical questionnaire.
On January 10, 2013, Complainant again met with DPM. After the meeting, Complainant emailed DPM the completed EEOC form 557 and informed DPM that his current cubicle was too noisy.
On January 15, 2013, S1 initiated Complainant's move to a different cubicle in a less-trafficked area. On January 30, 2013, however, S1 learned that Complainant had moved back to his original cubicle but did not notify her of the move or indicate why he had moved back.
On February 20, 2013, Complainant emailed DPM the completed medical questionnaire. On March 13, 2013, Complainant sent DPM an email requesting a status update on his request. On March 14, 2013, DPM responded to Complainant, informing him that she had attempted to locate a private office but was unable to do so. As an alternative, the Agency offered to provide noise-canceling headphones to reduce noise and sound distractions. Additionally, DPM stated that Complainant's request to telework was denied6 because of his need for supervision in performing [his] assignments," but that this decision could be reassessed in 60 days. On March 21, 2013, DPM provided Complainant with the noise-canceling headphones. On March 27, 2013, Complainant sent DPM an email asking about a door for his cubicle, which had been previously discussed. On March 29, 2013, Complainant informed DPM that the noise-canceling headphones were not effective at blocking out noise and that he was unable to concentrate.
On April 11, 2013, DPM sent Complainant a letter granting telework on Tuesdays between 7:00 a.m. to 5:30 p.m. for 90 days, after which time the Agency would reassess his accommodation to ensure that it was effective and that there was no undue hardship to the Agency. Additionally, Complainant was granted the continued use of the noise-canceling headphones, and DPM noted that she would confer with Building Facilities to explore the installation of a door on Complainant's cubicle. On April 20, 2013, Complainant informed S1 that he would be requesting leave under the Family and Medical Leave Act (FMLA) because he was not able to work without his requested accommodations. Complainant did not return to work.
On June 24, 2013, Complainant submitted another request for reasonable accommodation: to be reassigned to a Mediator position in the Las Vegas Local Office. On July 26, 2013, DPM responded to Complainant's request, denying the requested reassignment. DPM noted that a reassignment as a reasonable accommodation is to be provided to employees who can no longer perform the essential functions of his or her position because of a disability. In Complainant's case, DPM found that he failed to report to work to fully demonstrate his ability to perform the functions of his position.7 Additionally, DPM stated that one must be qualified for any reassigned position.
In both January and February 2014, Complainant's second-line supervisor (S2) sent him a letter informing him that he was currently in an absent without leave status and that if he did not return to work by February 10, 2014, the Agency would take action, up to and including removing him. Complainant emailed S2 to inform him that he did not receive the letter until February 24, 2014. On February 27, 2014, Complainant submitted his resignation from the Agency.
Complainant filed a formal EEO complaint alleging, in pertinent part, that the Agency discriminated against him on the basis of disability (mental and physical) when it denied/delayed his reasonable accommodation.
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 Administrative Judge. Complainant timely requested a hearing. On May 13, 2015, the Agency filed a motion for a decision without a hearing with the AJ. Complainant did not file an opposition to the Agency's motion with the AJ.
On June 24, 2015, the AJ issued a decision without a hearing, finding disability discrimination. Specifically, the AJ found that the Agency discriminated against Complainant when it failed to provide him with a reasonable accommodation and that there was an unreasonable delay in granting or denying his accommodation requests.
The AJ found that the evidence of record established that Complainant sent DPM an email on December 11, 2012, requesting the same accommodations that he previously had been granted, and that DPM requested additional medical information on December 17, 2012. The AJ found that the Agency likely violated an EEOC Enforcement Guidance when DPM sent Complainant the request for additional medical documentation.8 Additionally, the AJ found that the Agency violated its internal procedural policy for processing requests for reasonable accommodations when DPM did not provide Complainant with a written decision within 30 days of his request. Specifically, the AJ determined that several months lapsed before DPM responded to Complainant's reasonable accommodation request.
The AJ did find that the Agency showed some effort to act upon Complainant's reasonable accommodation request because S1 moved Complainant to a different cubicle in a less-trafficked area in mid-January 2013. However, the AJ found that the Agency did not provide Complainant with the office accommodation requested, which had been granted to Complainant while he was working in the Phoenix District Office in May 2011. The AJ stated that the granted accommodation contained no specific limitations as to his job or location. The AJ concluded that there was an unreasonable delay in granting or denying Complainant the requested accommodations and, considering the evidence in the light most favorable to the Agency, the preponderance of the record evidence established that there was, at least, a delay in granting him a reasonable accommodation.
CONTENTIONS ON APPEAL
On appeal, the Agency contends that the AJ erred in finding disability discrimination. Among other things, the Agency argues that there is insufficient evidence in the record to establish that: (1) it denied Complainant an office or other quiet space as a reasonable accommodation; and (2) it unnecessarily delayed Complainant's reasonable accommodation request. In addition, the Agency argues that the evidence in the record supports a finding of no disability discrimination or, "at worst," a finding that there is a factual dispute regarding whether it failed to provide Complainant with his requested accommodation, as well as the cause for any delay.
Complainant did not submit a brief or statement in opposition to the Agency's appeal.9
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 EEO MD-110, Ch. 9, � VI.B (providing that an AJ'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 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 EEO MD 110, Ch. 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 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (February 24, 1995). We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110, Ch. 7, � I; see also 29 C.F.R. � 1614.109(e). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995).
After a careful review of the record, we find that the AJ erred in issuing a decision without a hearing with respect to Complainant's denial/delay of accommodation claim.
An agency is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. 29 C.F.R. � 1630.9. An accommodation must be effective in meeting the needs of the individual. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance), General Principles. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Id. The agency may choose among reasonable accommodations as long as the chosen accommodation is effective. Id. at Question 9. The agency should respond expeditiously to a request for reasonable accommodation. Id. at Question 10. Unnecessary delays can result in a violation of the Rehabilitation Act. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for the delay; (2) the length of the delay; (3) how much the individual with a disability and the agency each contributed to the delay; (4) what the agency was doing during the delay; and (5) whether the required accommodation was simple or complex to provide. Id. at n.38.
Here, we find that there is a genuine issue of material fact regarding whether the accommodations offered by the Agency, i.e., a cubicle located in a less-trafficked area and noise-canceling headphones, were effective in providing Complainant with "a reduced distractive environment." Specifically, the record contains affidavit testimony from S1 that she moved Complainant to a cubicle closer to the management section of the office, as she thought "it might prove to be a quieter space with fewer distractions." In addition, the record contains affidavit testimony from DPM that she gave Complainant noise-canceling headphones to help reduce noise. The record, however, contains no documentary evidence pertaining to the effectiveness of the offered accommodations, such as the noise levels in the supposedly less-trafficked area and the noise reduction capabilities of the noise-canceling headphones. Moreover, the record contains affidavit testimony from Complainant that the offered accommodations were not effective. We note that Complainant, in his affidavit testimony, did not explain why the offered accommodations were not effective. Given the conflicting evidence in the record about whether the offered accommodations were effective, we think it is appropriate to let the parties present further evidence at a hearing to address this disputed question of fact.
Moreover, we find that the record has not been adequately developed for summary disposition regarding whether the Agency improperly delayed Complainant's reasonable accommodation request when DPM did not respond to Complainant's December 11, 2012, request until March 2013. Specifically, the record is not clear as to what caused the December - March gap in the Agency's processing of Complainant's request, especially the time between his December 11, 2012, initial request to DPM and his February 20, 2013, submission of the medical questionnaire to DPM. It is unclear from the record whether Complainant was told by DPM to submit the medical questionnaire or if he did so on his own to move the process along. We note that Complainant met with DPM on December 27, 2012 and January 10, 2013, but there is little evidence in the record about what was discussed at those meeting. When asked about Complainant's assertion that he was subjected to an unnecessary delay in receiving reasonable accommodation, DPM vaguely stated in her affidavit, "There was not delay in granting the accommodation. There was a delay to determine." Given the lack of evidence in the record about what led to Complainant's February 20, 2013, submission of the medical questionnaire to DPM, we think it is appropriate to let the parties present further evidence at a hearing to address this issue.10
CONCLUSION
In summary, with respect to Complainant's denial/delay of accommodation claim, we find that there is a genuine issue of material fact and that the record has not been adequately developed for summary disposition. Therefore, judgment as a matter of law for Complainant should not have been granted. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission, with respect to Complainant's denial/delay of accommodation claim, VACATES the Agency's final order and REMANDS the claim to the Agency in accordance with this decision and the Order below.
ORDER
The Agency is ORDERED to request the services of a contract Administrative Judge, within 15 days of the date this decision is issued, and likewise to provide a complete copy of the record for use by the contract Administrative Judge. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the matter has been referred to a contract Administrative Judge. Thereafter, the contract Administrative Judge shall hold a hearing and 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.
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 (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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:
______________________________ Bernadette B. Wilson's signature
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
__6/5/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent Agency and the adjudicatory authority. The Commission's adjudicatory function is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term "Commission" is used when referring to the adjudicatory authority and the term "Agency" is used when referring to the respondent party in this action. The Acting Chair, as head of the Agency, has recused herself from participation in this decision.
3 Where the EEOC is the respondent Agency, in accordance with Commission policy, a case is assigned to an independent contract Administrative Judge not employed by the Commission. See Logan-King v. Equal Emp't Opportunity Comm'n, EEOC Request No. 05A10082
(Jan. 3, 2002).
4 Complainant also requested accommodations that he already had and would be bringing with him: a space heater, dictation software on an Agency-issued computer, an ergonomic keyboard, and an ergonomic chair.
5 PCHP stands for Priority Charge Handling Procedures, a system to categorize and expedite the handling of its charge inventory.
6 It appears that it was DPM who first raised the possibility of telework as an accommodation, rather than a request from Complainant.
7 By that time, Complainant had not reported to work since he requested FMLA leave on April 20, 2013.
8 An employer cannot ask for documentation when an individual has already provided the employer with sufficient information to substantiate that the individual has an ADA disability and needs the reasonable accommodation requested. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 8 (as revised Oct. 17, 2002) (Reasonable Accommodation Guidance).
9 Complainant also alleged that the Agency subjected him to hostile work environment harassment and disparate treatment on the bases of disability, sex, and reprisal for prior protected EEO activity in connection with several other incidents. The AJ's June 24, 2015, decision without a hearing found no discrimination regarding those issues, and the Agency issued a final order implementing that part of the AJ's decision. Complainant did not contest the AJ's findings or the Agency's final order on appeal. Accordingly, we exercise our discretion to focus only on the issues specifically raised on appeal and will not address these matters in this decision. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � IV.A. (Aug. 5, 2015).
10 We note that Complainant also requested, as an accommodation, reassignment to a position in one of the Agency's field offices. Reassignment is the accommodation of last resort, when no other effective accommodation is available. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002). On remand, the parties should also be permitted to present evidence bearing on Complainant's request for reassignment.
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