0120132494
10-16-2015
Karin C.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karin C.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120132494
Agency No. 2012-OD-02
DECISION
On June 5, 2013, Complainant filed an appeal from the Agency's April 12, 2013, final decision concerning her 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physical Security Specialist with the Office of the Under Secretary of Defense for Intelligence in Crystal City, Virginia.
The record indicates that Complainant was diagnosed with Meniere's disease in 2005. This is a disease of the inner ear which, when she experiences an attack, causes dizziness, vomiting, and the room to spin. The attacks are not predictable and can last for a day or two.
On June 20, 2011, Complainant was issued a Leave Restriction Notice by her supervisor (Supervisor). The Supervisor noted that Complainant had taken 272 hours of unscheduled leave since January 2011. The Notice prohibited Complainant from working through lunch or making up hours by arriving early, and instructed her to call the Supervisor or the Director to request sick leave within one hour of her start time or she would be charged with being Absent without Official Leave (AWOL). Further, the Notice indicated that leave without pay (LWOP) would not be approved unless Complainant satisfied the criteria under the Family Medical Leave Act (FMLA). Finally, Complainant was required to request annual leave at least two workdays in advance of the leave usage.
In response, Complainant provided the Agency with a note from her doctor, dated June 29, 2011, stating that she has been diagnosed with Meniere's disease.2 The note stated that Complainant experienced vertigo with nausea, vomiting, and fullness/pressure/hearing loss in one ear which was unpredictable, and also caused fatigue and limited her ability to drive.
In July 2011, Complainant also requested reasonable accommodation for her medical condition. In response to her request, the Agency asked that Complainant provide it with medical documentation responding to six specific areas listed to its Human Resources office. When Complainant did not provide the requested medical documentation, on August 31, 2011, the Agency notified Complainant that her accommodation request could not be acted upon with the documentation. The Agency requested that Complainant provide the requested documentation by September 14, 2011. On September 7, 2011, Complainant submitted medical documentation. The Agency followed up with Complainant on September 22, 2011, stating that they needed more specific information by October 13, 2011. Complainant indicated that she had an appointment with her physician and the Agency revised the deadline to October 25, 2011. The Agency contacted Complainant twice when she failed to provide any additional documentation. Complainant was then told to provide the Agency with a release to allow them to contact her physician and to provide medical documentation by December 16, 2011. Complainant failed to do so.
During this time, on August 23, 2011, the Supervisor issued Complainant a proposed 14-day suspension. The proposed suspension noted that Complainant did not report to work for five days for medical reasons unrelated to her Meniere's in July 2011. Further, Complainant reported to work late on two occasions without following the notification requirements listed in the leave restriction notice. In addition, Complainant was cited for failing to follow directions relating to work assignments. On September 1, 2011, Complainant provided an oral response to the suspension notice. In her response, she stated her medical condition and that she was working on getting the FMLA documentation to the Agency. She noted that she has been remission for 11/2 years until her recent episode on August 15, 2011. In addition, Complainant listed a series of family issues that have been a burden on her for a number of years including the care and death of her mother, and her care for her grandchildren of whom she has had custody for four years. On October 17, 2011, the Director issued Complainant a 14-day suspension. Complainant served the suspension from October 23 to November 6, 2011.
On November 22, 2011, the Supervisor issued Complainant a Notice of Proposed Removal. The proposed removal indicated that Complainant was absent on several occasions without following the procedures listed in the leave restriction notice and failed to contact the Agency in a timely manner regarding absences. The Supervisor noted that some of the absences were related to illnesses which were not connected to Complainant's medical condition. The Supervisor also indicated that Complainant had issues with her performance. Complainant was provided with 10 days to respond to the notice of removal. On December 7, 2011, Complainant responded through her attorney at the time who asserted that Complainant's absences were related to her disability. He argued that the disciplinary actions involved disability-based discrimination because Complainant had not been provided with reasonable accommodation. On February 16, 2012, the Director issued the notice of removal.
In February 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability, and reprisal for prior protected EEO activity when:
1. on or about June 20, 2011, the Supervisor issued Complainant a Leave Restriction notice with terms that failed to consider her disability;
2. since June 2011, the Supervisor and Director subjected her work products to undue criticism;
3. on or about September 21, 2011, Complainant was denied the reasonable accommodation of bringing work home with her to complete over the weekend due to her illness;
4. on October 17, 2011, the Director issued a Notice of Decision imposing a 14-day suspension;
5. on November 22, 2011, the Supervisor placed Complainant in a paid, non-duty status pending the decision on proposed removal; and
6. on February 17, 2012, the Agency removed Complainant from federal employment.
At the conclusion of the investigation into her EEO complaint, the Agency issued a final decision with appeal rights to the Merit Systems Protection Board (MSPB). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed the matter to the MSPB.
The MSPB Administrative Judge issued a decision on May 31, 2013, dismissed the matter for lack of jurisdiction. As the MSPB no longer had jurisdiction, Complainant filed the instant appeal from the Agency's final decision. We note that Complainant did not request a hearing on appeal and asked that the Commission find that she was subjected to unlawful discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
Denial of Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation 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. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Complainant asserted that she needed reasonable accommodations, such as flexible telework, when she was experiencing the symptoms of her medical condition. However, we note that Complainant did not inform her management of her medical condition until after she received the leave restriction notice. She also did not establish that the bulk of her absences were related to her Meniere's disease, as she offered other reasons for her absences at the times they occurred, and also indicated at one point that her Meniere's had been in remission for a year and a half until it flared up again in August 2011. By this estimation, none of the absences from January 2011 to June 2011, when the leave restriction was imposed, were due to Complainant's medical condition. In addition, emails regarding Complainant's absences after June 2011, involved several issues, including the flu, sinus infections, court dates, trouble with her granddaughter, commuter train schedules and running errands. Finally, the record shows that the Agency actively engaged in discussions with Complainant over her July 2011 accommodation request, but she failed to provide the medical documentation requested and needed to determine what accommodations, if any, were necessary. Based on the totality of the record, we find that Complainant has not shown that her attendance problems were related to her medical condition. As such, we cannot find that the Agency violated the Rehabilitation Act by improperly failing to act upon her request for reasonable accommodation.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Due to Complainant's absences and issues with her work perfromance, the Agency subjected Complainant to the disciplinary actions resulting in her termination. Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for the leave restriction, the 14-day suspension, the proposed removal, and the ultimate removal decision. Complainant asserted that her leave usage was due to her medical condition. We find that Complainant failed to prove that her excessive leave usage was related to her Meniere's disease, rather than the many other issues going on in Complainant's life beside her medical condition. Furthermore, the record showed and Complainant averred that her medical condition was in remission until August 2011. Therefore, we find that Complainant failed to show that the Agency's reasons for its actions were pretext for discrimination based on her sex, disability, and/or prior EEO activity.
Harassment
It is well-settled that harassment based on an individual's sex, disability and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she is a qualified individual with a disability covered under the Rehabilitation Act, a member of the protected group, and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her sex, disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). 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 (March 8, 1994). Again, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that Complainant has not shown that the alleged actions were due to her protected activity. As such, we determine that Complainant failed to establish that the alleged events constituted harassment based on disability, sex, and/or prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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 Complainants 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
October 16, 2015
__________________
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 However, Complainant did not complete FMLA paperwork until September 2011.
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