0120110440
09-07-2012
Dwain Cooke, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Dwain Cooke,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120110440
Hearing No. 550-2010-00138X
Agency No. 1F-941-0075-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 7, 2010 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. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Processing and Distribution Center in San Francisco, California. Complainant is hearing impaired and has difficulty hearing and understanding some sounds and people. On June 13, 2009, Complainant noticed that two full mail trays were near his work area. Complainant pushed the two trays to the east dock for dispatch, but did not first alert a supervisor. When he returned to his work area, Complainant claimed that the relief supervisor (S1) yelled at him, asked him why he was missing from his assignment, and threatened to write him up. That same day, Complainant alleged that S1 and a second supervisor (S2) began making him "more responsible" and "demanded" that he stay on top of his duties, including helping the mail expeditors set up containers and labels. Complainant claimed that he had performed these duties for years, but had requested higher-level pay to perform these duties. Complainant alleged that S1 further harassed him on two other occasions in July 2009 by yelling at him.
On June 30, 2009, Complainant's direct supervisor (DS) approached Complainant about conducting a "day-in-court" meeting about his recent unsatisfactory attendance. Complainant requested an interpreter be present. Complainant alleged that management laughed at the request and suggested that a union representative act as an interpreter. Notwithstanding, management postponed the meeting until a sign language interpreter could be obtained. The Agency secured the services of an interpreter and conducted the meeting on July 28, 2009.
On September 14, 2009, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment on the bases of disability and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, since June 13, 2009, he was subjected to verbal abuse and ridicule; yelled at and demeaned; threatened with day-in-court meetings and/or discipline; given higher-level work assignments and denied higher-level pay; and was denied reasonable accommodation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) 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 issued a decision without a hearing on September 28, 2010.
In her decision, the AJ determined that the alleged incidents were not sufficiently severe or pervasive to rise to the level of a hostile work environment. The AJ found that the Agency's actions were well within its legitimate managerial discretion to handle routine supervisory matters. For example, Complainant contended that he was subjected to discriminatory harassment when S1 questioned his whereabouts on two occasions after noticing that he was missing from his assignment. However, Complainant conceded that he was missing from his assignment on both occasions. Although Complainant contended that his absences were both justified because he was assisting with other duties on the first occasion and on break the second; without more, evidence that his supervisor became irritated and simply questioned him about where he had been was insufficient to demonstrate unlawful harassment. Finally, the AJ found that Complainant conceded that he had long been performing the expeditor duties even though they were not officially part of his assignment. Complainant failed to present any evidence that management treated other similarly-situated employees outside of his protected classes more favorably.
As to Complainant's allegation that the Agency discriminated and retaliated against him by subjecting him to a day-in-court meeting, the AJ determined that it was undisputed that Complainant had been charged with unsatisfactory attendance and management held the day-in-court meeting in order to afford him the opportunity to respond to these charges. Complainant presented no evidence showing that he was unlawfully singled out for this meeting. Further, it was undisputed that management responded to Complainant's request for an interpreter by delaying the scheduled meeting until an appropriate interpreter could be obtained. On July 28, 2009, the Agency held the day-in-court meeting with Complainant and provided him with the requested interpreter. Thus, Complainant had not been denied reasonable accommodation in violation of the Rehabilitation Act as alleged.
The AJ concluded that Complainant had not established that any of the Agency's actions were motivated by discriminatory or retaliatory animus. As a result, Complainant had not been discriminated against or subjected to a hostile work environment as alleged. The Agency subsequently issued a final order adopting the AJ's decision. Complainant submitted no arguments or contentions on appeal.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission 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.
Upon review of the record, the Commission determines 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 Commission notes that Complainant's opposition to the AJ's notice of intention to issue a decision must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and his arguments on appeal do not undermine the AJ's determination that, even assuming all facts in his favor, a reasonable fact finder could not find in his favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Here, Complainant asserted that based on his statutorily protected classes, management continuously subjected him to a hostile work environment. Complainant alleged several incidents of what he believed to be discriminatory and retaliatory harassment. However, construing the evidence in the light most favorable to Complainant, the Commission finds that Complainant has not shown that he was subjected to a hostile work environment. Specifically, S1 denied yelling at or ridiculing Complainant on June 13, 2009; rather, he affirmed that Complainant had been missing from his work area for 30 minutes, and he asked Complainant where he had been. ROI, at 162. While at least one witness claimed that S1 spoke in a loud voice, there is no evidence that S1 acted with discriminatory or retaliatory animus.
In regard to the expeditor duties, management denied requesting Complainant perform those duties on the day in question. ROI, at 163, 180, and 216. DS affirmed that when Complainant asked her about higher-level pay for those duties, she referred him to S2 because the unit already had a regular expeditor. ROI, at 217. DS added that Complainant claimed he was doing that work on the weekends, and S2 would have to approve the higher-level pay. Id. DS noted that Complainant is currently receiving higher-level pay. ROI, at 57. In addition, Complainant alleged that management took advantage of him and gave an example of S2 sending him to the hospital to pick up an injured mail handler. S2 maintained that when she asked Complainant to pick up the injured mail handler, he raised no objection and performed the task without any complaint. ROI, at 180-81.
Finally, regarding the "day-in-court" meeting, DS confirmed that she requested the meeting to discuss Complainant's unsatisfactory attendance. ROI, at 57. Complainant does not dispute that his attendance was unsatisfactory. The record reveals that Complainant requested an interpreter, and DS postponed the meeting was postponed until one could be obtained. Id.
The Commission finds that Complainant has not shown that he was subjected to conduct sufficiently severe or pervasive to rise to the level of a hostile work environment. In addition, the Commission finds that Complainant failed to show that these incidents were unlawfully motivated by discriminatory or retaliatory animus. As a result, the Commission finds that Complainant was not subjected to a hostile work environment as alleged.
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant 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. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). Under the Commission's regulations, an Agency is required to make reasonable accommodation to 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. See 29 C.F.R. �� 1630.2 (o) and (p). It is undisputed that Complainant is a qualified individual with a disability under the Rehabilitation Act.
An employer should respond expeditiously to a request for reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, at question 10 (Oct. 17.2002). If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. 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 delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Id. at n. 38.
The Commission has held that for a severely hearing impaired employee who can sign, reasonable accommodation, at a minimum, requires providing an interpreter for safety talks, discussions on work procedures, policies or assignments, and for every disciplinary action so that the employee can understand what is occurring at any and every crucial time in his employment career, whether or not he asks for an interpreter. See Feris v. Envtl. Prot. Agency, EEOC Appeal No. 01934828 (Aug. 10, 1995), request for reconsideration denied, EEOC Request No. 05950936 (July 19, 1996) (citing Bradley v. U.S. Postal Serv., EEOC Request No. 05920167 (Mar. 26, 1992); Jackson v. U.S. Postal Serv., EEOC Request No. 05880750 (Apr. 18, 1989)).
Based on a review of the entire record in this case, the Commission finds that Complainant has not established that the Agency failed to provide reasonable accommodation. Specifically, the record evidence reveals that Complainant requested that an interpreter be present for his day-in-court meeting on June 30, 2009. The Commission finds that there is no evidence in the record indicating that the Agency was unwilling to provide Complainant an interpreter as the meeting was postponed until one could be obtained. The record reveals that interpreter services were secured within a reasonable time, and the interpreter was present for the re-scheduled meeting on July 21, 2009. Complainant has presented no evidence showing that the Agency unreasonably delayed or acted in bad faith in providing the requested accommodation. Thus, there is no evidence suggesting that Complainant was deprived of a benefit or privilege of his employment. Under these circumstances, the Commission finds that Complainant has not demonstrated that he was denied reasonable accommodation.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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 (Nov. 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
September 7, 2012
Date
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0120110440
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110440