0120081116
02-07-2011
Ralph E. Manning, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Ralph E. Manning,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081116
Hearing No. 560-2007-00044X
Agency No. 200L-0623-2006100642
DECISION
On December 31, 2007, Complainant timely filed an appeal from the Agency's
November 29, 2007, final decision concerning his 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 accepts the appeal it pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission MODIFIES the Agency's final
decision.
ISSUES PRESENTED
The issues presented are: 1) whether the Agency properly dismissed
portions of Complainant's complaint on the basis that Complainant
previously raised these matters in a negotiated grievance procedure; 2)
whether the EEOC Administrative Judge (AJ) abused her discretion when
she denied Complainant's request for a hearing; and 3) whether the
Agency properly found that Complainant was not subjected to unlawful
discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Addiction Therapist at the Agency's facility in Muskogee, Oklahoma.
On March 16, 2006, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (Caucasian) and
disability (Post-Traumatic Stress Disorder (PTSD) and Major Depressive
Disorder) when:
1. On November 28, 2005 and December 5, 2005, Complainant requested but
was not provided with an office with a window;
2. On December 5, 2005, the Agency denied Complainant a "fee-basis card"
and advised him to utilize his private health care provider to acquire
health care; and
3. On November 17, 2005, Complainant's supervisor (S1), had only the
Native American employees identify themselves during a staff meeting,
which appeared to have affected her decisions regarding workloads and
assignments to non-Native Americans.
Complainant also alleged that the Agency subjected him to reprisal for
prior EEO activity under the Rehabilitation Act when on December 22,
2005, he was granted two hours instead of the requested eight hours of
administrative leave to prepare his EEO case and, on April 4, 2006, he
was informed that another employee who had asked for an office without
a window received an office with a window.
Additionally, Complainant alleged that he was subjected to disability
when:
a. The Agency denied his request for a single office from January 2003
through October 2005 and from November 28, 2005, to December 5, 2005;
b. The Agency failed to provide adequate disability parking spaces for
employees;
c. The Agency failed to provide Complainant with voice-recognition
software;
d. From January 2003 through October 2005, the Agency kept Complainant's
personnel records at the Muskogee Medical Center;
e. On March 9, 2005, the Agency denied Complainant's request for advanced
sick leave;
f. On December 5, 2005, the Agency requested that Complainant sign an
unlimited release of information of all medical records in connection
with his request for advanced sick leave; and
g. The Agency denied Complainant's request for advanced sick leave for
October 11, 2005, through December 22, 2005.
In a letter dated July 20, 2006, the Agency dismissed claims (a) through
(g) on the basis that Complainant elected to pursue these matters though
a negotiated grievance process. The Agency investigated the remaining
claims.
In an investigative affidavit, Complainant stated that he verbally asked
his supervisor (S1) for an office with a window in late November 2005.
Exhibit B-1. Complainant further stated that S1 responded by stating that
Complainant needed to speak with Complainant's second-line supervisor
(S2) and the Chief of Behavioral Science (the Chief) about the matter.
Complainant stated that he sent an email to the Chief on December
6, 2005, to follow up on his request for an office with a window.
Complainant further stated that on February 15, 2006, the Chief informed
him that the Agency would provide him with a phototherapy lamp instead of
an office with a window. Complainant stated that the lamp would not be
very effective for his medical condition because unlike a window office,
it would not allow him to focus on other things.
Complainant also stated that during the relevant time period, a co-worker
(C1) was leaving the office for another job. He stated that C1 told
him he could have her window office, and told Complainant that she had
received a window office although she did not request one.
The Chief stated that Complainant submitted a broad statement from one
of his medical providers that did not specify the correlation between
his medical condition and his request for a window office. Exhibit B-2.
The Chief stated that when he talked to Complainant, he had the impression
that Complainant needed the window because of depression. The Chief
further stated that he subsequently received a letter from Complainant's
medical provider that said that Complainant suffered from depression
and PTSD and would benefit by having an office window. The Chief
stated that he asked Complainant to provide him with documentation that
demonstrated why Complainant needed an office window instead of a lamp,
but Complainant did not submit the documentation. He further stated that,
as part of the Substance Abuse staff, Complainant works as a team with
other Substance Abuse, and no Substance Abuse staffers have windows.
The Chief also stated that the office's windows have very dark glass
that prevents sunlight from getting into the office.
Regarding claim 2, Complainant stated that a fee-basis card authorizes
the Agency to pay medical expenses incurred with non-Agency healthcare
providers. Complainant stated that on or a about September 2005,
he informed the Chief that he was interested in obtaining a fee-basis
card, and the Chief said that Complainant had to submit a memorandum to
the Muskogee Chief of Staff requesting a fee basis card. Complainant
stated that he submitted the request in November 2005, but was denied.
Complainant stated that he was informed that he must go the Agency's
Oklahoma City, Oklahoma Medical Center for treatment. Complainant stated
that it would take him between 90 and 120 minutes to travel from Muskogee
to Oklahoma City for treatment.
The Chief of Staff stated that he denied the Complainant's request for a
fee-basis card because the Agency had the capability to treat Complainant.
The Chief of Staff further stated that Complainant could have used either
the Tulsa, Oklahoma Outpatient Clinic or the Muskogee Medical Center
to receive treatment. The Chief of Staff stated that the Agency had
excellent Behavior Medicine experts that are very sensitive to patient
privacy, "and since the facilities are available in the VA, I cannot
justify spending government money to send him to the private sector."
Exhibit B-4, p. 5.
With respect to claim 3, Complainant stated that during a staff meeting,
S1 identified Native-American co-workers and asked Complainant if he
was Native-American. Complainant stated that, as a result of S1 making
distinctions among staff members, he believed that work assignments were
affected by her actions during the meeting.
S1 stated that during her introductory meeting with staff, she provided
background information about herself, which included identifying herself
as an American Indian. She further stated that she did not ask anyone,
including Complainant, to identify whether they were Native American,
and that work assignments were not influenced by employees' race or
ethnicity. Further, an Addiction Therapist stated that she was present
at the November 17, 2005 staff meeting, and witnessed S1 state that
she is a member of the Creek Nation and had previously worked at the
Creek Behavioral Health Service, but S1 did not ask anyone to identify
themselves by their race during the staff meeting. Exhibit B-8.
At the conclusion of the investigation of the accepted claims, the Agency
provided Complainant with a copy of the report of investigation and notice
of his right to request a hearing before an AJ. Complainant requested
a hearing, but the AJ denied his request on the basis that Complainant
failed to submit a pre-hearing report. Consequently, the AJ remanded
Complainant's complaint to the Agency for the issuance of a final Agency
decision, pursuant to 29 C.F.R. � 1614.110(b). In a final decision dated
November 29, 2007, the Agency concluded that Complainant failed to prove
that the Agency subjected him to discrimination or harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency improperly dismissed
claims (a) through (g). Complainant further contends that the
AJ improperly denied his request for a hearing because he failed to
submit a pre-hearing report, noting that he was hospitalized several
times during discovery, and his stepfather died during the relevant
time period. Complainant further contends that the Agency improperly
found no discrimination on the accepted claims. The Agency requests
that we affirm its final decision.
STANDARD OF REVIEW
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. (November 9, 1999) (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
Dismissal of Claims (a) through (g)
The Agency dismissed claims (a) through (g) on the basis that Complainant
elected to pursue these matters through a negotiated grievance process.
Although the final decision contends that the Master Agreement between
the Agency and the union allowed Complainant to raise discrimination
claims in the grievance process, the record does not contain a copy of
either the grievance or the Master Agreement to support the Agency's
contention. It is the burden of the Agency to have evidence or proof
in support of its final decision. See Marshall v. Dept. of the Navy,
EEOC Request No. 05910685 (September 6, 1991). Therefore, we find that
the Agency improperly dismissed claims (a) through (g).
Hearing Request Denied
The record reveals that in an order to both parties dated April 3,
2007, the AJ scheduled a prehearing conference on the accepted claims
for June 4, 2007. In that Order, the parties were ordered to submit
prehearing reports and instructed that the reports must be received by
the AJ and the opposing party five days before the prehearing conference.
Additionally, the parties were notified that a party's failure to timely
submit a prehearing report could result in sanctions against the offending
party, including, if the offending party was Complainant, canceling the
hearing.
On or about April 10, 2007, the Agency moved to continue the prehearing
conference and hearing dates. By Order dated April 12, 2007, the AJ
granted the Agency's request, rescheduling the prehearing conference
for June 18, 2007. However, the AJ further notified the parties that
their prehearing reports must be received by the AJ and opposing party
by June 13, 2007. The Agency timely submitted its prehearing report,
and Agency counsel appeared telephonically for the prehearing conference
on June 18, 2007. Complainant appeared at the prehearing conference
but did not submit a prehearing report.
The AJ ordered Complainant to show good cause for failing to submit a
prehearing report, to which Complainant responded. In an order dated
June 25, 2007, the AJ concluded that Complainant failed to provide
good cause for failing to submit a prehearing report and remanded the
complaint for a final Agency decision.
On appeal, Complainant maintains that he failed to submit a pre-hearing
report because he was hospitalized several times during discovery, and
his stepfather died during the relevant time period. However, as noted
by the AJ, Complainant did not bring these matters to the attention of
the AJ until after he failed to submit the prehearing report, although
he telephoned or communicated with the AJ almost weekly from February
2007 through May 2007. Complainant should have raised these matters
with the AJ before the deadline to submit the prehearing report, not
after the deadline had passed. On appeal, Complainant further contends
that he has been at a legal disadvantage during the EEO process because
he has not been able to find legal representation. We note that a
complainant is responsible for proceeding with the processing of a
complaint whether or not the complainant has an attorney-representative.
See 29 C.F.R. � 1614.605(e). Consequently, we do not find that the AJ
abused her discretion by dismissing the hearing request. See Sanders
v. U.S. Postal Serv., EEOC Appeal No. 01A00214 (February 10, 2000).
Disparate Treatment
Complainant's accepted claims can be reviewed under a disparate treatment,
harassment, and reasonable accommodation analyses. Generally, claims
of disparate treatment are examined under the tripartite analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Hochstadt v. Worcester Found. for Experimental Biology. Inc., 425
F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For
Complainant to prevail, 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 Constr. Corp. v. Waters, 438 U.S. 567,
576 (1978). For instance, to establish a prima facie case of reprisal,
Complainant must show that (1) she engaged in protected EEO activity;
(2) the Agency was aware of the protected activity; (3) subsequently,
she was subjected to adverse treatment by the Agency; and (4) a nexus
exists between her protected activity and the adverse treatment. Whitmire
v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Once a complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance of
the evidence that the Agency's reason(s) for its action was a pretext
for discrimination. At all times, Complainant retains the burden
of persuasion, and it is her obligation to show by a preponderance
of the evidence that the Agency acted on the basis of a prohibited
reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993);
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16
(1983).
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 to the agency. 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 on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994). Further,
the incidents must have been "sufficiently severe and 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);
Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
In this case, for purposes of analysis and without so finding, we assume
that Complainant is an individual with a disability and established a
prima facie case of discrimination. Nonetheless, we find that the Agency
offered legitimate, non-discriminatory reasons for each of its alleged
actions, as set forth above. Complainant has not proven that the Agency's
non-discriminatory explanations are pretext for unlawful discrimination.
Thus, we find that the Agency properly found no disparate treatment
discrimination. As such, a finding that Complainant was subjected
to a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by the
Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal
Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 purposes of analysis, we assume without so finding that Complainant
is an individual with a disability.
In this case, in a memorandum to the Agency dated December 6, 2005,
Complainant requested a window office "facing the East or West for
sunlight." Exhibit C-5. The memorandum further stated that Complainant
and his mental health providers believe that several symptoms would be
minimized by providing him with a window office that offered him the
benefits of sunlight to treat his depression. Further, in an email to
the Chief dated December 6, 2005, Complainant requested an office with
a "window/sunlight" view. Exhibit C-8. In that email, Complainant
also asserted that research indicates that sunlight is a treatment for
depression.
Instead of providing Complainant with the requested window office, the
Agency offered to provide Complainant with a phototherapy lamp specified
for treatment of depression. Complainant rejected the Agency's offer to
provide the lamp, but we find that it was an effective accommodation to
treat his conditions. In so finding, we note that S1 is a psychiatrist,
and therefore is versed in the treatment of Complainant's asserted
condition. Complainant's requests reveal that he needed light to treat
his condition, which the phototherapy lamp would provide. Moreover,
during the relevant time period, Complainant did not show that he needed
a window office as a reasonable accommodation by providing statements
from physicians that explained in detail why he specifically needed a
window office because of his conditions.
Although protected individuals are entitled to reasonable accommodation
under the Rehabilitation Act, they are not necessarily entitled to
their accommodation of choice. See Reasonable Accommodation Guidance,
Q. 9. The employer may choose among reasonable accommodations so long
as the chosen accommodation is effective. U.S. Airways v Bennett, 535
U.S. 391, 400 (2002). The Agency offered to provide Complainant with
an effective accommodation, which Complainant rejected. Thus, we find
that the Agency satisfied its obligations under the Rehabilitation Act.
Official Time
Finally, we note that Complainant also alleged that on December 22,
2005, the Agency gave him only two hours of official time to work on
his EEO case instead of the requested eight hours.1 The Human Resources
Specialist stated that, because Complainant's EEO case was at the informal
stage during the relevant time period, he determined that two hours of
official time was appropriate. Exhibit B-6. The record confirms that
Complainant requested official time during the informal stage, only three
weeks after initiating EEO counselor contact. Complainant has not shown
why he needed more than two hours to prepare his EEO case at that time.
See Flores v. U.S. Postal Serv., EEOC Appeal No. 01A34485 (Feb. 11,
2004) (agency's grant of one hour official time during informal stage
was reasonable). Thus, we do not find that the Agency denied Complainant
a reasonable amount of official time in this case.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we MODIFY the Agency's
final decision as follows: we REVERSE the Agency's dismissal of claims
(a) through (g) and REMAND these claims to the Agency for further
processing in order with the Order below; we AFFIRM the Agency's finding
of no discrimination with respect to claims 1 though 3.
ORDER (E0610)
The Agency is ordered to process the remanded claims ( a- g) in
accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to
the Complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The Agency
shall issue to Complainant a copy of the investigative file and also shall
notify Complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the Complainant
requests a final decision without a hearing, the Agency shall issue
a final decision within sixty (60) days of receipt of Complainant's
request.
A copy of the Agency's letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the Agency issues its final decision on your complaint.
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
February 7, 2011
Date
1 The Commission has stated that an allegation pertaining to the
denial of official time states a separately-processable claim alleging
a violation of the Commission's regulations, without requiring a
determination of whether the action was motivated by discrimination. See
Edwards v. U.S. Postal Serv., EEOC Request No. 05960179 (December 23,
1996). Essentially, the Commission has held that it has the authority
to remedy a violation of 29 C.F.R. � 1614.605 without a finding of
discrimination. Id. The Commission held that such a claim should not be
processed in accordance with 29 C.F.R. 1614.108, since the focus is not
on the motivation, but rather the justification of why the complainant
was denied a reasonable amount of official time. Id.
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0120081116
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081116