Raul Gomez, Complainant,v.Condoleezza Rice, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionMar 16, 2005
01a45373 (E.E.O.C. Mar. 16, 2005)

01a45373

03-16-2005

Raul Gomez, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.


Raul Gomez v. Department of State

01A45373

3/16/05

Raul Gomez,

Complainant,

v.

Condoleezza Rice, Secretary,

Department of State,

Agency.

Appeal No. 01A45373

Agency No. 03-02

Hearing No. 360-2004-00026X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning his equal employment opportunity (EEO) complaint of unlawful

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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq. , and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission AFFIRMS the agency's final order.

I. BACKGROUND

The record reveals that complainant, an Information Management Specialist

at the agency's Embassy in Rome, Italy, filed formal EEO complaints

on December 26, 2002 and March 26, 2003, alleging that the agency

discriminated against him on the bases of race (Native American),

national origin (Hispanic), disability (back injury, arthritis), age

(D.O.B. 4/16/42), and reprisal for prior EEO activity when:

(1) the Nurse Practitioner at Embassy Rome released and discussed

his medical history with others at post without his written or verbal

consent, and he was denied curtailment from Embassy Rome for physical

illness; and

management officials in Human Resources and IRM/M/EX (at the agency's

State Annex 21 facility in Springfield, Virginia) denied his request

for sick leave.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). The AJ issued a decision without a hearing, finding no

discrimination. The agency's final order implemented the AJ's decision.

The AJ adopted the findings of fact and conclusions of law in the

Agency's Motion for Summary Judgment (Motion). The AJ then noted

specifically that the Nurse Practitioner only released complainant's

medical information to persons who needed to know his medical history

for the purposes of accommodating complainant's ailment. The AJ also

noted that the agency denied complainant's curtailment because another

accommodation was feasible. Finally, the AJ found that complainant's

request for sick leave was denied because complainant did not provide

the proper documentation from a physician.

The Agency's Motion contended that the agency's alleged actions towards

complainant while deployed in Rome were not severe or pervasive enough to

constitute a hostile work environment under Title VII. The Motion also

argued that the agency did not subject complainant to discrimination by

revealing his medical records because they were released for the purpose

of evaluating his request for curtailment of his assignment in Rome,

not because of his race, national origin, age, disability, or prior

EEO activity. Finally, the Motion argued that complainant was denied

sick leave because he failed to provide the appropriate documentation

from a physician for receiving greater than three days of sick leave.

On appeal, complainant contends, among other things, that the agency

failed to adhere to Executive Order 5396,<1> and he argues that the EEOC

is required to enforce all executive orders.

The agency reiterates the arguments made in its Motion.

II. LEGAL STANDARD

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.

The hearing process is intended to be an extension of the investigative

process, designed to ensure that the parties have "a fair and reasonable

opportunity to explain and supplement the record and, in appropriate

instances, to examine and cross-examine witnesses." See Equal

Employment Opportunity Management Directive for 29 C.F.R. Part 1614

(EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(e).

�Truncation of this process, while material facts are still in dispute

and the credibility of witnesses is still ripe for challenge, improperly

deprives complainant of a full and fair investigation of her claims.�

Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575

(March 26, 1998). See also Peavley v. United States Postal Service,

EEOC Request No. 05950628 (October 31, 1996); Chronister v. United

States Postal Service, EEOC Request No. 05940578 (April 25, 1995).

In the context of an administrative proceeding, an AJ may properly

consider summary judgment only upon a determination that the record has

been adequately developed for summary disposition.

III. ANALYSIS

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists.

Allegation (1): Did the agency discriminate against complainant on the

basis of his race, national origin, age, disability, or prior EEO activity

when the Nurse Practitioner at Embassy Rome released and discussed his

medical history with others at post without his written or verbal consent,

and he was denied curtailment from Embassy Rome for physical illness?

We find that the AJ appropriately concluded that no genuine issue of

material fact existed regarding complainant's allegation (1). The record,

even when viewed in a light most favorable to complainant, does not

support a finding that the agency's actions were based on complainant's

race, national origin, age, disability, or prior EEO activity.

In allegation (1) complainant made two claims of discrimination.

He asserted that he was treated differently because of his race, national

origin, age, disability, or prior EEO activity when his request for

curtailment was denied. He also asserted that the agency discriminatorily

harassed him when the Nurse Practitioner released his medical records.

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). First, complainant must

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. Next, the agency

must articulate a legitimate, nondiscriminatory reason(s) for its actions.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981). If the agency is successful, then the complainant must prove,

by a preponderance of the evidence, that the legitimate reason(s)

proffered by the agency was a pretext for discrimination. Id. at 256.

Complainant may assert a claim of harassment if the discriminatory conduct

was so severe or pervasive that it created a work environment abusive to

him or her because of their race, gender, religion, or national origin.

Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,

1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))

req. for recons. den. EEOC Request No. 05970995 (May 20, 1999).

The initial inquiry for both claims may be dispensed with in this case

since the agency has articulated legitimate and nondiscriminatory

reasons for its conduct. See United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department

of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).

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, 120 S.Ct. 2097

(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);

Holley v. Department of Veterans Affairs, EEOC Request No. 05950842

(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request

No. 05950351 (December 14, 1995).

The record reveals that the Nurse Practitioner discussed complainant's

medical history with a physician in Rome. The physician examined

complainant in order to diagnose the chronic back pain and hip problems

complainant was experiencing. The results of the diagnosis were

used by the Medical Officer at the embassy in Rome to decide whether

complainant's request for a medical curtailment of his deployment to Rome

should be granted. The Medical Officer denied complainant the medical

curtailment because he concluded that complainant's ailment could be

treated in Rome and that the agency could accommodate complainant by

restricting his work responsibilities such that he would not have to

lift anything weighing over five pounds or do any repeated lifting.

Assessing complainant's need for an accommodation is a legitimate

nondiscriminatory explanation for the agency's actions. Enforcement

Guidance: Reasonable Accommodation and Undue Hardship Under the Americans

with Disabilities Act at 12-15 (2002) (Guidance); 29 C.F.R. pt. 1630,

app. �1630.14(b)(1998). An agency may make disability-related

inquiries and require medical examinations when an employee requests a

reasonable accommodation. Guidance at 12-15. The agency may disclose

medical information to health care professionals when seeking advice

in making reasonable accommodation determinations. 29 C.F.R. pt. 1630,

app. �1630.14(b)(1998).

The record contains insufficient evidence that the agency's

reason is pretextual to create a genuine issue of material fact.

Complainant alleged that the Medical Officer made derisive comments about

complainant's family physician in the United States because he assumed the

physician was Mexican and did not respect the Mexican medical profession.

Complainant supposes that the Medical Officer was therefore motivated

to require complainant to see another physician and then to deny him

a curtailment. The Medical Officer stated that he found complainant's

family physician's medical conclusions suspect and felt that complainant

should see a specialist.

We find that complainant's evidence, if true, only shows that the Medical

Officer did not trust the Mexican medical profession. It does not prove

that he harbored discriminatory animus towards complainant. No evidence

exists in the record showing that his assessment of complainant's

medical needs was tainted by an anti-Mexican bias. Thus, although a

dispute exists concerning complainant's medical needs, no dispute exists

regarding the Medical Officer's motivation for his recommendation.

The record unequivocally indicates that he was acting based on his

assessment of complainant's medical needs.

Allegation (2): Did the agency discriminate against complainant on

the basis of his race, national origin, age, disability, or prior EEO

activity when management officials in Human Resources and IRM/M/EX

(at the agency's State Annex 21 facility in Springfield, Virginia)

denied his request for sick leave?

We find that the AJ appropriately concluded that no genuine issue of

material fact existed regarding complainant's allegation (2). The record,

even when viewed in a light most favorable to complainant, does not

support a finding that the agency's actions were based on complainant's

race, national origin, age, disability, or prior EEO activity.

Here again, the prima facie inquiry may be dispensed with, since the

agency has articulated legitimate and nondiscriminatory reasons for

its conduct. See United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).

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, 120 S.Ct. 2097

(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);

Holley v. Department of Veterans Affairs, EEOC Request No. 05950842

(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request

No. 05950351 (December 14, 1995).

The record reveals that the responsible agency official denied

complainant's request for sick leave because agency regulations required

that complainant submit a note from a physician stating complainant's

need for extended sick leave. Complainant did not provide such a note.

He could only provide evidence that he had appointments for medical

care. Complainant argues that, because he is a military veteran, Executive

Order 5396 overrides the agency's policy and requires that the agency

grant complainant sick leave even without a doctor's note.

We find that complainant's argument, taken as true, shows only that the

agency did not treat him appropriately as a military veteran. He fails

to create a genuine issue of material fact regarding discrimination

on the basis of his race, national origin, age, disability, or prior

EEO activity.

Complainant also fails to show that the agency should have granted him

sick leave in order to reasonably accommodate his medical condition.

Under the Commission's regulations, an agency is required to reasonably

accommodate the known limitations of a qualified individual with a

disability, unless the agency can show that accommodation would cause an

undue hardship. EEOC's Enforcement Guidance on Reasonable Accommodation

and Undue Hardship under the Americans with Disabilities Act, at 2

(revised October 17, 2002) (Guidance); see also 29 C.F.R. � 1630.9.

Once an employer becomes aware of the need for an accommodation of an

employee's disability, the employer has an obligation under the governing

EEOC Regulations to engage in an interactive process with the employee to

identify and implement appropriate reasonable accommodations. 29 C.F.R. �

1630.2(o)(3). Once requested, the individual must provide adequate

documentation to reasonably inform the agency of his physical limitations.

Guidance at 12-14; see also Applewhite v. EEOC, EEOC Appeal No. 01994939

(April 6, 2000). Here, complainant failed to provide documentation

from his physician as requested by the agency to justify a grant of

sick leave beyond that already granted by the agency. The agency, thus,

did not fail to reasonably accommodate complainant.

IV. CONCLUSION

Therefore, after careful review of the record and the parties' arguments

on appeal, we affirm the AJ's finding of no discrimination on summary

judgment.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

____3/16/05______________

Date

1Executive Order 5396, according to complainant, provides that veterans

are entitled to a leave of absence for necessary medical treatment.

Complainant's Appeal For Reversal of Summary Judgment, Agency Complaint

File, tab 2, at 17.