0120100436
01-31-2013
Kimberly M. Hollingsworth, Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce, Agency.
Kimberly M. Hollingsworth,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce,
Agency.
Appeal No. 0120100436
Hearing No. 531-2008-00171X
Agency No. 07-63-00137
DECISION
On October 30, 2009, Complainant filed an appeal from the Agency's September 30, 2009, final order concerning her 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which found Complainant failed to demonstrate that she was discriminated against as she alleged.
ISSUES PRESENTED
The issue presented in this case is whether the Administrative Judge (AJ) correctly issued a decision without a hearing which found that Complainant, among other things, was not entitled to a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-12 Survey Statistician at the Agency's Commerce Building facility in Washington, D.C. On August 28, 2006, the Commerce Department opened a new office building. Following the opening of the building, Complainant indicated that each time that she entered the building she experienced bronchial asthma, allergic rhinitis, and sick building syndrome. Complainant asked if she could be allowed to work at the old Commerce building, or from an alternative site, or from her home. Initially, informal efforts were made to accommodate Complainant. Complainant was allowed to work from home from September 12th to the 25th. At the end of September 2006, the Human Resources Department advised Complainant's supervisor that she could no longer allow Complainant' to work from home full-time because the telework policy allowed for only two days per pay period. Nevertheless, Complainant's supervisor continued to permit Complainant to work from home. Complainant worked from home from October 4th through the 13th, 2006. Thereafter, Complainant's supervisor allowed Complainant to work from the old Customs building. On October 24, 2006, Complainant was asked to provide medical documentation regarding her condition. She was asked to provide pulmonary tests results and information regarding what triggered her response. On December 12, 2006, the Agency issued a letter informing Complainant that the November 14, 2006, medical documentation that she had provided was insufficient as it simply repeated her claim that she had sick building syndrome. The Agency requested that Complainant provide more specific medical documentation by January 3, 2007. On December 20, 2006, Complainant's physician gave her a peak flow meter to use when she entered the new building to help determine whether she had sick building syndrome. Complainant was to self-report her reactions. Complainant's self reported results indicated that she did have sick building syndrome. On December 29, 2006, Complainant's physician informed the Agency that Complainant had been diagnosed with Bronchial Asthma, Allergic Rhinitis and Sick Building Syndrome. Complainant's physician suggested that Complainant be allowed to work from an alternative location.
On March 8, 2007, due to a telework-related breach of protected information, the Agency's Deputy Director issued an announcement disallowing all telework throughout the Agency for approximately 30 days, except for employees working from home for medical reasons. On March 12, 2007, Complainant was notified that her latest documentation was insufficient as again no information was provided indicating what triggered her allergic response. Complainant's supervisor notified Complainant that the building had been tested by the Safety and Health Unit and the results showed that the building was healthy. Complainant was therefore instructed to return to the building. On March 19, 2007, however, Complainant's union representative requested that Complainant be allowed to work from home until September 27, 2007, as Complainant had no acceptable medical documentation her request was denied. Complainant did not return to the building.
On June 29, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and disability (bronchial asthma, allergic rhinitis, and sick building syndrome) when:
1. From April 16, 2006, and continuing to the present, the Agency failed to reasonably accommodate her diagnosed disabilities by not allowing her to transfer to an alternative working environment, including another building or her home;
2. Beginning on May 1, 2007, the Agency forced her to exhaust sick and annual leave during the time she was unable to work in the alleged contaminated building;
3. On June 1, 2007, the Agency rescinded its offer allowing her to work from home for six months;
4. On June 11, 2007, the Agency denied her request to be placed on advanced sick leave; and
5. On June 11, 2007, the Agency placed her on leave without pay status.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's November 14, 2008, motion for a decision without a hearing and issued a bench decision without a hearing on September 16, 2009. Specifically, the AJ found that Complainant could not establish that she was substantially limited in the major life activity of breathing as she had only set forth evidence that she was limited in that major life activity when she entered the Agency's newly constructed facility. Consequently, he found that Complainant was not entitled to a reasonable accommodation and that the Agency did not violate the Rehabilitation Act when it did not provide her with the accommodations that she requested. Finally, the AJ determined that Complainant failed to show that she was a qualified individual with a disability as her only argument was that she could not work in one building.
With respect to Complainant's claim that the Agency discriminated against her on the basis of her race, the AJ found that Complainant failed to set forth a prima facie case of race discrimination as she had not demonstrated that she was treated less favorably than similarly situated employees. While Complainant cited two white comparator's whom she believed had been accommodated, the AJ found that these employees were not in fact similarly situated to her as she failed to set forth specific evidence regarding their positions, impairments, supervisory chains, the locations they worked, the accommodations they requested and whether any accommodation were actually granted. Further, the AJ found that even assuming that Complainant could establish a prima facie case of race discrimination, the Agency articulated a legitimate, non-discriminatory reason for denying Complainant the opportunity to telework, namely that management stopped telework, for everyone for a minimum of 30 days, in order to address its security concerns. Accordingly, the AJ found that Complainant failed to show that she had been subjected to discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, both Complainant and the Agency provided numerous briefs in support of their positions.1 In Complainant's brief she argues that the AJ erred when he found that she was not a qualified individual with a disability. She also maintains that the AJ improperly made credibility determinations with regard to the medical providers. She maintains the AJ favored the Agency's two doctors over her five doctors' opinions. Complainant points out that the Agency's doctors never examined her while her doctors actually treated her. Complainant contends that the AJ characterized her physicians' treatment as self-diagnosis without any objective medical evidence. Complainant notes however, that the Agency denied her medical providers' request for a second peak flow test to obtain objective data, which she indicates denied her medical providers the opportunity to obtain additional objective evidence about the serious effects of the new building on Complainant.2
Complainant also argues that it was a per se violation for the Agency to have requested a general medical release. Further, Complainant maintains that it was not undue hardship for the Agency to provide a reasonable accommodation.
The Agency requests that the AJ's decision be affirmed. The Agency also requests that Complainant's multiple briefs not be considered.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 id. at Chapter 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").We 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.
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 administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that the AJ correctly issued a decision without a hearing as there are no material facts at issue in this case. We find that even if we assume arguendo that Complainant is a qualified individual with disability, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that with respect to issues no. 1 and 3, the telework accommodation that she had been provided was discontinued because of an Agency wide decision to suspend telework because of a telework security breach. With regard to issues no. 2, 4, and 5, because Complainant had not provided adequate medical documentation regarding her accommodation request, and because she failed to return to the Agency when requested, her leave was used to excuse her absence. Similarly, Complainant's request for advanced leave was denied as Complainant had little to no leave and had indicated that she would not be returning. Management stated that it denied her request as there was no expectation that she would be able to pay the advanced leave back.
Initially, Complainant was informally accommodated, but when the Agency requested medical documentation to support her claim, specifically documentation which would show what the "trigger" was to her condition, Complainant failed to provide acceptable documentation. In fact, the record shows that the Agency informed Complainant about the tests needed and still she did not provide the requested medical information. We find that the break down in the process was caused by Complainant failing to provide the requested medical documentation. The record shows that the Agency had the building tested, and had two physicians review Complainant's submitted data in relation to the documentation compiled about the building. As Complainant failed to provide the medical information requested, we find that she has not demonstrated that the Agency failed to provide her with an accommodation or subjected her to disability discrimination.3
Further, we find that even if we assume arguendo that Complainant established a prima facie case of race discrimination, the Agency articulated legitimate nondiscriminatory reasons for its actions, as discussed above. We find that Complainant failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. Moreover, we find that Complainant failed to show that discriminatory animus was involved in this case as the record shows that management took every step possible to accommodate Complainant.
With respect to Complainant's arguments on appeal, we find that they are conclusory as there is no evidence provided that the AJ made credibility determinations with regard to the testimony of physicians involved. We also do not find evidence that a per se violation was committed when Complainant was asked for a medical release. As noted, an Agency does have the right to seek reasonable documentation, and more importantly there is no evidence which shows that Complainant ever submitted the necessary documentation.
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 order which found that Complainant failed to demonstrate that she was discriminated against.
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 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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
___1/31/13_______________
Date
1 29 C.F.R. � 1614.403(d) provides that any statement or brief filed on behalf of a Complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. The record reveals that, in addition to the statement in support of her appeal, Complainant submitted several additional statements to support her claim. Other than the initial appeal brief and Agency response, the Commission declines to consider any other statements by either party, as they are untimely pursuant to 29 C.F.R. � 1614.403(d).
2 In one of Complainant's briefs she asks that we take judicial notice of an Arbitrator's subsequent finding. It appears that while this matter was pending before the Commission, Complainant filed a grievance with the Agency. The Agency denied the grievance on June 12, 2009. The union invoked arbitration and the Agency agreed. Thereafter, the Agency and Complainant entered into arbitration. The Arbitrator addressed Complainant's discrimination claims as well as her removal from the Agency. The Arbitrator found that Complainant established that she was an individual with a disability, that she had been discriminated against, and that she was entitled to accommodation. The Arbitrator also found that Complainant was entitled to reinstatement of her position. Complainant appealed the decision to the MSPB, as the Arbitrator did not address Complainant's entitlement to attorney's fees and compensatory damages. The MSPB in a decision dated February 18, 2011, found that the Arbitrator had properly analyzed the case and ordered a hearing regarding remedies. For the reasons set forth in footnote #1, and because we have no documentation that establishes what the specific issues presented to the arbitrator were, the Commission declines Complainant's request that we take judicial notice of these matters. Accordingly, the Commission will make a decision regarding this case based on the materials that are included in the case file.
3 The Commission has recently held that if an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012).
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01-2010-0436
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100436