0320170038
07-27-2017
Rayford H.,1 Petitioner, v. Denise Turner Roth, Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rayford H.,1
Petitioner,
v.
Denise Turner Roth,
Administrator,
General Services Administration,
Agency.
Petition No. 0320170038
MSPB No. SF531D170031I1
DECISION
On April 18, 2017, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of 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. For the following reasons, we CONCUR with the MSPB's finding that Petitioner did not establish that he was subjected to discrimination or denied a reasonable accommodation.
BACKGROUND
Petitioner worked as a Realty Specialist, GS-12 at the Agency's Real Estate Acquisition Division, Public Buildings Service in San Diego, California. Petitioner alleged that the Agency discriminated against him on the bases of race (white), sex (male), religion (Christianity), color (white), disability (back injury, hearing loss), age (56), and reprisal for prior protected EEO activity when he was denied a With-In-Grade (WIGI), effective April 3, 2016.
The record indicates that Petitioner was denied a WIGI after it was noted that, after initially being very successful, his performance on the next phase of his training was unsuccessful making him ineligible for a WIGI. Specifically, he went from a Level Three rating in the first part of his training to a Level One rating in the second part of this training which made him ineligible for the WIGI. Petitioner maintained that his supervisor (S1) was stricter with him than his female coworkers. He maintained that his second-line supervisor (S2), Hispanic, only hired African American or Hispanic people and therefore obviously had a bias against Caucasian males. Petitioner also noted that he was not liked because he was a Christian.
Petitioner blamed his rating on the fact that his commute was very arduous. He notified S1 that his commute was an hour and a half long in the morning and two to three hours long in the evenings. Petitioner requested that he be allowed to telework. On November 3, 2015, Petitioner's physician in a note dated November 3, 2015, recommended that Petitioner be allowed to telework at his discretion "to accommodate his current health issues and needs."
Petitioner's medical documentation indicated that his medical impairments included chronic lumbosacral strain with degenerative disc disease, knee pain, tinnitus, hearing loss, headaches, depression, and anxiety. Petitioner also reported experiencing panic attacks which he described as chest pains, nausea, headaches, shortness of breath and fainting spells.
On December 10, 2015, S1 wrote to Petitioner to explain that while Agency employees were generally eligible for telework, as a new employee, telework was not offered during his training and development period to help him learn the job. Notwithstanding S1 approved telework on alternating Fridays, but Petitioner did not sign the required telework agreement. S1 told Petitioner that he needed to provide additional medical information supporting his need for additional telework because the physician did not explain what duties Petitioner was unable to perform without accommodation and what accommodations would enable him to perform the essential functions of his position. S1 provided Petitioner a list of information he needed to evaluate the request for additional telework.
On December 28, 2015, Petitioner's physician again noted that Petitioner should be allowed to telecommute at his own discretion based on his chronic conditions.
In January 2016, Petitioner repeated his request to telework and explained that he had difficulty making his long commute to and from work with heavy traffic. On January 11, 2016, S1 wrote to Petitioner and explained that his physician had not addressed how teleworking would enable him to perform the essential functions of his position. S1 invited Petitioner to provide clarifying medical documentation to the Agency's reasonable accommodation coordinator.
Subsequently, Petitioner's request for additional telework was denied. S1 explained that Petitioner "asked for telework in consideration of his commute, which was over 60 miles each way. S1 indicated that he was reluctant to approve any telework for Petitioner, because he felt that he needed in-person guidance and daily instruction with the second part of his training.
On January 13, 2016, Petitioner sent S1 an email stating: "in light of my deteriorating health, I request your approval and support with this request for reassignment." On February 16, 2016, Petitioner sent an email to S1 that stated in part: "I have asked to be reassigned as I have expressed to you repeatedly I cannot handle the stress associated with this hostile Electronic Sweatshop Environment." On February 29, 2016, Petitioner sent an email stating he was unable to handle the "daily barrage of constant correction and constant questioning of my ability to recall. I am not adjusting at all to the high stress and demands, all of this causing irreparable harm to my health and self-esteem...I am begging, please reassign me. I am not the Marine I once was, I am incapable of handling the stress and demands of this position."
S1 indicated that he did not reassign Petitioner because he did not have the authority to reassign an employee to another organization, he was unaware of any vacancy that would have provided Petitioner with a shorter commute from Murrieta, or less complex work, and Petitioner did not identify any vacant funded position to which the Agency could have reassigned him.
Petitioner also maintained that S1 shared his password with Petitioner and he reported S1 for the security violation.
Petitioner withdrew his request for a hearing and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that Petitioner did not demonstrate that he was subjected to discrimination or denied a reasonable accommodation when he was denied a WIGI. The AJ noted that initially Petitioner did a good job and received a Level 3, Fully Successful rating. Thereafter, management explained that Petitioner was moved to the next phase of his training and that, in phase-2, Petitioner was struggling. Petitioner received a Level 1, unsuccessful rating, which made him ineligible for the WIGI. The AJ found that Petitioner did not show that his sex, race, color, national origin, religion, disability, age, or prior EEO activity had anything to do with his not getting a WIGI. The AJ noted that Petitioner's assertions were based on his speculation about the motivation of management and was not supported by any evidence suggesting that the WIGI was denied based on his protected bases. The AJ found that Petitioner did not meet his burden of proving discrimination as he presented no direct evidence of discriminatory animus, nor did he present evidence that similarly situated non-disabled employees or employees not in his protected bases were treated more favorably.
In finding no discrimination, the MSPB AJ relied upon the MSPB's decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. � 2000e-16 is a matter of civil service law. Id.
The AJ also determined that the Agency did not fail to provide Petitioner a reasonable accommodation. The AJ noted that the Agency was not required to accommodate Petitioner's personal choice to take a job that was far from his home. Nor was the Agency required to modify or eliminate duties that were an essential function of the position. The AJ determined that the additional telework Petitioner requested, would not have been a reasonable accommodation, and that the Petitioner presented no evidence of a vacant and funded position to which he could have been reassigned. The AJ found that the Agency provided leave to Petitioner when he requested it and engaged in the interactive process regarding his requests for reasonable accommodation. The AJ also determined that the Agency's failure to approve the accommodations of additional telework and/or reassignment were unrelated to Petitioner's inability to perform at an acceptable level of competence during the rating period.
Finally, the AJ found that Petitioner did not establish his reprisal whistleblower claim because even if S1 made a protected disclosure regarding his password, the Agency showed by clear and convincing evidence it would have denied Petitioner's WIGI even in the absence of his disclosures regarding S1 sharing his password.
Petitioner then filed the instant petition. Among other things, he contends that he objects to the analysis, findings, and decision by the AJ. Likewise, he disagrees with the AJ's determination that S1 and S2's statements were credible while his was over dramatic and exaggerated. Petitioner maintains that S1's behavior towards him changed once he reported S1's security violation.
Petitioner contends that the actions against him appear to be suspiciously timed. He also maintains that the Agency took action against his union representative. Petitioner asserts that his witnesses support his argument that S1 was overly demanding and described a dysfunctional work place under S1 that was overbearing as he was a military minded former navy officer.
Further, Petitioner maintains that he was never told that he was going to be trained in phases. His witness, who had as much experience as S1, indicated that Petitioner's assignments were not realistic for his training and experience level and that S1 had very little time for training him. Petitioner asserts that mastering the basics of the Realty Specialist position was highly technical and learning the service data process was difficult.
Finally, Petitioner maintains that the telework offered to him would not have been effective.
ANALYSIS AND FINDINGS
Standard of Review
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
At the outset, we note that the Commission does not have jurisdiction to address Petitioner's Whistleblower Act violation claims.
Furthermore, we find that the AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of disparate treatment discrimination when the Agency denied his WIGI; we will however analyze this matter according to the McDonnell Douglas paradigm. We find, however, that the AJ correctly determined that Petitioner did not establish that the Agency discriminated against him as alleged.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, a petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. A petitioner carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. 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, the petitioner bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, we find that even if we assume arguendo that Petitioner established a prima facie case of discrimination with regard to all of his protected bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Petitioner did not receive a WIGI because he did not qualify for one based on his Level One performance appraisal rating. We find that Petitioner's pretext argument, that other coworkers not of his protected bases were treated more favorably is not persuasive. We find that Petitioner did not identify any coworker that received a WIGI after having received a Level One rating. We note that both Petitioner and his witnesses acknowledge that the training was difficult and that Petitioner struggled. Petitioner did not provide any persuasive evidence which suggested that his rating should have been rated at a higher level. We find that Petitioner did not establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).
Reasonable Accommodation
The Commission's regulations require an Agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � I630.2(n)(3).
In the instant case, we find that even if we assume arguendo that Petitioner is a qualified individual with a disability, the record shows that Petitioner did not provide the requested medical documentation in support of his accommodation request. Agencies are required to engage in an interactive process with employees regarding reasonable accommodations, and employees who refuse to cooperate in that process are not entitled to an accommodation. See Carleen L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120151465 (May 12, 2017), citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, Question 6 (Oct. 17, 2002) (If an employee refuses to provide the documentation requested by the employer, then she is not entitled to reasonable accommodation).
Notwithstanding the fact that Petitioner did not provide the requested documentation, S1 approved telework on alternating Fridays, but Petitioner did not sign the required telework agreement. Accordingly, based on the above, we cannot find that the Agency denied Petitioner a reasonable accommodation because Petitioner did not show that he was entitled to said accommodation.
Finally, we find that Petitioner's arguments on appeal do not support any change in the finding. We find that other than his conclusory statements he has not provided any evidence which demonstrates that discriminatory animus was involved in the decision to deny his WIGI or his request for accommodation.
Accordingly, the Commission agrees with the MSPB's ultimate determination that Petitioner did not establish that the decision to not grant him a WIGI was based on discrimination or reprisal or that he was denied a reasonable accommodation.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no unlawful discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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 Complainant's 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
__7/27/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0320170038
7
0320170038