Elvis G.,1 Complainant,v.Linda McMahon, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Jun 30, 2020

2019000968 (E.E.O.C. Jun. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elvis G.,1 Complainant, v. Linda McMahon, Administrator, Small Business Administration, Agency. Appeal No. 2019000968 Hearing No. 503-2008-00065X Agency No. 4C-250-0055-15 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 9, 2018, 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 Agency’s final order. BACKGROUND Complainant worked as a Public Affairs Specialist, GS-1035-13, at the Agency’s Regional Office in Philadelphia, Pennsylvania. In that capacity, he served as the Communications Director for Region III. On February 16, 2007, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (degenerative joint disease, bipolar disorder) and in reprisal for prior protected EEO activity when2: 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 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of 2019000968 2 1. On August 31, 2006, S1, denied his request for a reasonable accommodation allowing him to telecommute for three days per week; 2. On unspecified dates, S1 harassed Complainant by damaging his professional reputation, threatening him with adverse actions, and exposing him to public criticism; and 3. On November 16, 2006, S1, with the concurrence of S2, gave Complainant a rating of 3 out of 5 on the critical element of writing in his annual performance appraisal. Complainant identified the Regional Administrator, his immediate supervisor (S1) and the Associate Administrator for Field Operations, his second-line supervisor (S2), as the responsible management officials. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 18, 2008, motion and issued a summary judgment decision on October 4, 2018.3 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 averred that as of May 2006, he primarily experienced complications from degenerative joint disease and bipolar disorder conditions. He reported that his joint condition made it difficult for him to walk any significant distance, climb stairs, sit for long periods of time, and perform activities of daily living. Ex. F2, p. 1, ¶ 3. He further stated that his bipolar condition impaired his decision-making ability, his memory, and his ability to concentrate, and that the side effects of the medications he was taking to control his condition made it difficult for him to function in the workplace. Ex. F2, p. 1, ¶ 4. He nevertheless maintained that he was able to manage his conditions and that S1 had told him that he was doing a “great job.” Ex. F2, p. 2, ¶ ¶ 5-7. As a reasonable accommodation, he requested that he be allowed to telework for three days per week, but S1, with the concurrence of S2 and the Human Resources (HR) staff, had approved only one day per week of teleworking for him. Ex. F2, pp. 2-3, ¶ ¶ 8-9. He identified his May 2006 request for a reasonable accommodation as his prior protected EEO activity. Ex. F2, p. 3, ¶ 11. disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability. 3 No explanation has been given for the 10-year delay in responding to the Agency’s motion. 2019000968 3 Incident (1): Complainant claimed that S1 failed to accommodate his request to telecommute for three days per week between May and December 2006. Ex. F2, pp. 3-4, ¶¶ 10, 17. According to S1, Complainant submitted a reasonable accommodation request form on May 22, 2016, in which he requested that he be allowed to telecommute three days per week. Ex. F3, pp. 1-2, ¶¶ 3-6. S1 averred that Complainant’s physician recommended that he be allowed to work at home but did not specify for how many days per week. Ex. F3, p. 2, ¶¶ 7-9. S1 also stated that Complainant indicated that he would be able to travel to attend media events, which she thought was inconsistent with the disability he was claiming. In addition, she stated that Complainant was unwilling to accept any other possible accommodations, such as a wheelchair. Ex. F3, pp 2-3, ¶ 10. A letter from the Chair of the Reasonable Accommodation Review Committee dated August 31, 2006, stated that the Agency could reasonable accommodate Complainant by allowing him to telework one day per week, on Wednesdays. Ex. F8, Ex. F9, Ex. 14a, Ex. 14b. S1 affirmed that after engaging in the interactive process and considering Complainant’s medical documentation and in consultation with the Office of Human Capital Management (OHCM), she approved Complainant for telework on one day per week instead of three. S1 stated that she needed Complainant at the office for a number of reasons: 1) as S1’s speechwriter, he had to gather and organize information for speeches at least once per week, and that much of the needed information was located at the office; 2) to field telephone calls from the press; 3) to draft S1’s press responses, which were usually based on data located at the office. S1 cited other reasons as well, including responsibilities as Communications Director for Region III. Ex. F3, pp, 3-4, ¶ 10; Ex. F4, p. 3, ¶ 14. S2 and the Chair of the Reasonable Accommodation Review Committee (RARC) concurred with S1’s decision. Ex. F3, pp. 4-5, ¶¶ 13-14; Ex. F4, p. 2, ¶ 9; Ex. F7, pp. 2-3, ¶¶ 6-8, 10-11. Incident (2): Complainant identified a number of interactions between himself and S2 that took place between July and December 2006 which he claimed, in essence, constituted a hostile work environment. He alleged that on an unspecified date, S1 told him that he was not well-liked at the Agency and that when she, S1, left, his colleagues would, “eat him alive.” Ex. F2, p. 3, ¶ 12. Other incidents of alleged harassment included: S1 telling Complainant that he was not as smart as she thought he was; S1 often yelling at Complainant; S1 accusing Complainant of not preparing her well enough for an interview; S1 not inviting Complainant to a regional conference in late August 2006; S1 going on a tirade against him as soon as he started telecommuting; S1 accusing Complainant of being combative and trying to undermine her; and S1 threatening to give him an adverse performance appraisal if he did not prepare S1’s own appraisal. Ex. F2, pp. 3-4, 7, ¶¶ 12-13, 16, 18-19, 24-25. 2019000968 4 S1 denied that any of the alleged incidents of harassment occurred as Complainant described them. She denied telling Complainant that she was against telecommuting in general or that she threatened him regarding his performance appraisal and averred that she merely asked him to compile information that had been submitted by the district directors as part of their appraisals, pointing out that her own performance was being evaluated, in part, on whether the district directors had met their goals. Ex. F3, pp. 7-9, ¶¶ 26-29, 32, 37. S2 stated that he was stationed in Washington D.C., that he never observed S1 harassing Complainant, that Complainant had never brought any of his allegations to his attention, and that he never heard S1 express her dislike of the telecommuting program. Ex. F4, pp. 2-3, ¶¶ 10-11, 13. One of Complainant’s coworkers stated that he never heard S1 raise her voice to Complainant and that he did not observe S1 treating Complainant less favorably after May 20, 2006 than before. Ex. F5, pp. 2-3, ¶¶ 11-12. Incident (3): According to the appraisal documentation, Complainant was rated on three critical performance elements as follows: customer satisfaction - 5 out of 5; written material - 3 out of 5; and job specific - 5 out of 5. He received an overall rating of “Exceeds Expectations” and was awarded a superior performance bonus in the amount of $777.34. Ex. F3, pp. 5,7, ¶¶ 18, 23-24; Ex. F15, pp. 1-2. Complainant claimed that he should have received a rating of 5 out of 5 on the written work element. He acknowledged, however, that his proof-reading had become an issue and that he had made one or two statistical miscalculations but maintained that there were no other notable issues about his writing. Ex. F2, p. 6-7, ¶¶ 20-23. S1 affirmed that she would meet with Complainant each quarter and explain to him that he needed to do more proof-reading and that she provided him with written feedback on the proof-reading issue. As an example, she cited an instance in which Complainant overlooked incorrect statistical information in a briefing book he was preparing for the Agency head. In another instance, Complainant overlooked inaccurate statistics in a talking points memorandum that she, S1, used during a radio interview. She also averred that Complainant had made a similar mistake in presentation materials for one of her speeches. Ex. F3, p. 6, ¶¶ 17-22. An Administrative Resource Coordinator who proof-read Complainant's work at his request stated that it appeared to him that Complainant needed to do more proof-reading. Ex. F5, p. 2, ¶ 7. ANALYSIS AND FINDINGS Standard of Review 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. 2019000968 5 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. Denial of Reasonable Accommodation - Incident (1): Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dep’t. of Agric., EEOC Appeal No. 0120120400 (December 3, 2015). As noted above, because the alleged denial of reasonable accommodation occurred in 2006, prior to the enactment date of the Americans with Disabilities Act Amendments Act (ADAAA), we must analyze his disability claim under the pre- ADAAA framework. Velva B. v, U.S. Postal Serv., EEOC Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017), req. for recon. den’d., EEOC Request Nos. 0520180094 & 0520180095 (March 9, 2018). As a threshold matter, Complainant must establish that he is a person who has, has a record of, or is regarded as having a physical or mental impairment which substantially limits one or more of his major life activities, i.e., caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner, or duration under which an individual can perform a major life activity. 29 C.F.R. § 1630.2(j). The record includes medical documentation establishing that Complainant had been experiencing joint deterioration that made it difficult for him to walk, sit, and engage in day- to-day activities. Complainant also presented documentation establishing that he had a bipolar disorder that impaired his memory, decision-making, and ability to concentrate, and that the side effects from his medications made it hard for him to function effectively at work. This is sufficient to establish that Complainant is an individual with a disability. We must next determine whether the Complainant is a qualified individual with a disability. A qualified individual with a disability is an “individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). S1 acknowledged that from May through December 2006, Complainant was able to perform the essential functions of his position. 2019000968 6 Ex. F3, p. 5, ¶ 16. We therefore find that Complainant was a qualified individual with a disability, and as such, was entitled to a reasonable accommodation. While Complainant is entitled to an effective reasonable accommodation, he is not entitled to the accommodation of his choice. Owen T. v. Dep’t of the Army, EEOC Appeal No. 0120180596 (June 12, 2019) citing Lynette B. v. Dep't of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). Here, Complainant requested the accommodation of telecommuting three days per week. Complainant submitted medical documentation in support in which his physician stated that Complainant “may benefit from working from home to minimize transit/travel…and medication.” Complainant’s physician did not indicate a specific number of days that Complainant should telecommute. Complainant and Agency officials engaged in the interactive process and Complainant was subsequently offered one day of telecommuting, transportation to attend media events, accommodation for travel work assignments, and a wheelchair upon request or other assistive mobility devices. S1 affirmed that Complainant was needed in the office due to his roles as her speech writer and the regional communications director, and that the information he needed to perform those duties was located at the office. She further averred that Complainant needed to be present in the office in order to field press inquiries and prepare press responses. S1 had made her determination to allow Complainant to telework one day per week after consulting with the OHCM and the RARC. Complainant has presented no evidence that the granted accommodations were ineffective. Accordingly, we find that the Agency satisfied its obligation to provide Complainant with a reasonable accommodation under the Rehabilitation Act of 1973. Disparate Treatment - Incident (3): 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 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, non-discriminatory 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 (2000). The prima facie inquiry may be dispensed in this case, however, since S1 already articulated a legitimate and nondiscriminatory reason for rating Complainant 3 out of 5 on the writing element of his appraisal, namely that he insufficiently proof-read his written work products. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). 2019000968 7 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be raised by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008). Other than his own assertion that he merited a 5 out of 5 on the writing element, Complainant has presented neither affidavits, declarations or unsworn statements from witnesses other than himself nor documents that contradict the explanation put forward by S1 regarding his performance evaluation or which call into question S1’s veracity as witnesses. Ultimately, we agree with the AJ that Complainant failed to raise a genuine issue of material fact on the issue of whether S1 harbored a discriminatory or retaliatory motive toward Complainant when she rated him 3 out of 5 on the writing element of his annual performance appraisal. Hostile Work Environment In order to establish a claim of harassment, a 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In order to meet the requirements of prong 4, 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). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, Complainant must present enough evidence to raise a genuine issue of material fact as to whether he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also raise a genuine issue of material fact as to whether the conduct of the management officials named in his complaint conduct was motivated by unlawful considerations of his disabilities. Only if Complainant raises genuine issues of material fact as to both of those elements, hostility and motive, can the question of Agency liability for discriminatory harassment be brought before an AJ for a hearing. 2019000968 8 Complainant asserted that based on his protected classes, management officials subjected him to a hostile work environment. Construing the evidence in the light most favorable to Complainant, the Commission finds that the totality of the conduct at issue was insufficiently severe or pervasive to raise a genuine issue of material fact as to the existence of a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the evidence in the record raises no genuine issue of material fact as to whether discriminatory or retaliatory animus played a role in any those occurrences. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. The Commission therefore concludes, based upon the totality of the circumstances, that Complainant has not presented evidence sufficient to raise a genuine issue of material fact as to whether he was harassed because of his disabilities or because he had requested a reasonable accommodation. As a result, the Commission finds that Complainant was not subjected to a discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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. 2019000968 9 The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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’s signature Carlton M. Hadden, Director Office of Federal Operations June 30, 2020 Date