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.