0120114251
02-21-2013
Robert L. McCall, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Robert L. McCall,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120114251
Hearing No. 541-2011-0014X
Agency No. 200P-0005-2010100089
DECISION
On September 19, 2011, Complainant filed an appeal from the Agency's August 16, 2011, final order 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 pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which found that Complainant failed to show that he was subjected to discrimination.
ISSUES PRESENTED
The issues presented in this case are whether Complainant established that he was subjected to discrimination on the basis of disability when he was denied a reasonable accommodation and whether he was subjected to harassment based on reprisal when he received a "Fully Successful" performance rating.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Security Officer (ISO), GS-12 at the Agency's Albuquerque facility in New Mexico. Complainant accepted his current position in Albuquerque in October 2006. At the same time he moved his family and primary residence to El Paso, Texas. Complainant also elected to have his primary medical care at the El Paso, Texas VA Medical Center-Clinic instead of Albuquerque because Albuquerque VA Medical Center was a training facility and he did not want to be treated by residents.
Complainant sustained a back injury while serving in the military in 1994. His condition has progressively worsened and on August 3, 2007, he was diagnosed with Lumbar Radiculopathy, which is a chronic low back pain that extends to his legs. Complainant walks with a cane and has problems standing and walking.
On or about December 12, 2008 and again on May 15, 2009, Complainant, through his El Paso, Texas Nurse Practitioner asked that Complainant be accommodated by permitting him to work from home because it would benefit him to attend physical therapy, take pain medication and utilize hot/cold packs throughout the day. Complainant began taking Tylenol 3 with codeine in December 2008. This allowed him to function fairly normally but could inhibit his ability to drive.
On December 9, 2009, Complainant's Nurse Practitioner wrote a letter which indicated that due to the medication that he was taking Complainant needed assistance driving to and from work. Complainant self-reported however that his use of Tylenol 3 had not resulted in any side effects. He indicated however that he did not take his medication as recommended. Again on April 27, 2010, in a "whom it may concern" letter, Complainant's Nurse Practitioner indicated that Complainant takes medication for pain that can make him drowsy, dizzy, and nauseous and should be prohibited from driving or operating heavy machinery. Complainant requested an accommodation to work as a "virtual employee" out of the El Paso, Texas VA facility.
As an ISO, Complainant's job function required him to monitor computers, in-put information, and interact with clients and employees in the facility. For his interaction with the public, the Agency maintained that he had to be physically present at the facility.
In 2009, Complainant received a performance rating of "Fully Successful." He had previously received an "Excellent." At that time, the record indicates that he was the only ISO on site. In 2009, however, all three ISO's at Complainant's duty station received a "Fully Successful" performance rating.
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (back) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On October 2, 2009, his request to work from his home in El Paso, Texas as a reasonable accommodation was not approved; and
2. On November 9, 2009, his first-line supervisor harassed him by giving him an annual performance evaluation of "Fully Successful."
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency's February 23, 2011, motion for a decision without a hearing and issued a decision without a hearing on July 20, 2011. The AJ found that there were no material facts at issue in this case and therefore issued a decision without a hearing. The AJ found that Complainant failed to demonstrate that he was refused a reasonable accommodation. The AJ found that the Agency accommodated Complainant although it did not grant him the accommodation of his choice. Specifically, the record showed that Complainant was allowed to change his work schedule as needed in order to take advantage of preferred or necessary alternate transportation, and; he was allowed to take leave as needed in order to accommodate his medication, transportation and medical needs. The AJ found that the flexible schedule was permitted even though Complainant had indicated that he had no side effects with regard to his medication. He was also offered medical procedures and treatment at work with the assistance of the employee health unit. Under the circumstances, the AJ found that Complainant failed to show that he was denied a reasonable accommodation under the Rehabilitation Act.
The AJ also determined that Complainant failed to show that he was subjected to disability discrimination under a disparate treatment theory. The AJ found that Complainant failed to show that a similarly situated employee who was treated more favorably than he was. To show pretext, Complainant indicated that the supervisor and a friend of hers had been allowed to work at alternate job sites during an unstated period of time. The AJ found that Complainant was not similarly situated to a supervisor, who was subject to different rules and privileges than Complainant. Similarly, the AJ found that Complainant failed to show that the supervisor's friend was similarly situated and noted that the supervisor allowing the friend to work at an alternate site was not based on disability but friendship.
Finally, the AJ determined that Complainant failed to show that he was subjected to harassment based on reprisal when he was given a "Fully Successful" performance rating. The AJ found that the Agency had articulated a legitimate, nondiscriminatory reason for its action, namely, that Complainant was rated "Fully Successful" because his work, with regard to quality, quantity, and timeliness, did not merit an "Excellent" rating. The AJ found that the record showed that Complainant had received an Excellent rating the year before because he was the only ISO on site. During the rating period in question, two additional ISO were added to the site. Moreover, they all received "Fully Successful" ratings because the work was split between the three. The AJ found that Complainant failed to show that he had been subjected to harassment based on reprisal or discrimination based on his disability. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the EEO Counselor gave him incorrect information when the Counselor told him that he did not have to respond to the Agency's motion for summary judgment. He also contends that other ISOs have been allowed to telework, including the two ISOs that work with him. As such, he maintains that he has shown that similarly situated employees have received more favorable treatment. Further, he contends that it is not necessary for him to be on site in order to do his job. He maintains that contrary to management's explanation he could easily do his job from home as the job responsibilities include paperwork, a lot of sitting at the computer and running audits on the computer system. He asserts that all of this could be done through email, telephone, and web access. Moreover, he maintains that his supervisor initially on December 18, 2008, approved his telework request for a three month period but the telework request was later disapproved by his second-line supervisor.
Further, Complainant contends that while he did not have an accident while taking his medication, he could have easily caused bodily injury to himself or some other innocent person. Additionally, he contends that while the Agency maintained that it had made available the use of the Employee Health unit to help with hot/cold packs and the TENS unit, when he contacted the Employee Health unit, he discovered that no arrangements had been made.
In response, the Agency maintains that Complainant failed to indicate who exactly the employee was that he spoke to regarding the summary judgment motion. Notwithstanding, the Agency maintains that Complainant was aware of his rights because the Complainant received the AJ's Acknowledgement and Order, both parties engaged in discovery, and Complainant filed no motions to compel or other motion expressing his displeasure with the hearing process. The Agency also indicated that the evidence supports the finding of no discrimination and therefore its final order should be affirmed.
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 an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). 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 properly issued a decision without a hearing because there are no material facts at issue. Specifically, we find that even if we assume arguendo that Complainant established a prima facie case of disability discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not allowed to telework from his home in another state because the Agency could provide effective accommodations at his work location. Further, we note that to show pretext with respect to his disparate treatment claim, Complainant maintained that other employees, who were not disabled, were allowed to telework. The record shows that many employees had been allowed to telework however it had been for short durations for temporary medical conditions. Complainant had also been allowed to telework and his request to work from home for three months had been initially approved but when it was discovered that he wanted to work from home for a year or more the request was denied. We find that this indicates that discriminatory animus did not play a role in the decision to deny his request. Further, while it is more believable than not that Complainant could have performed some of his duties remotely from home, there were other duties in his position description that required him to have customer contact. Nevertheless, the Commission has long held that an employee does not have to be given the accommodation of his choice as long as the accommodation offered is effective. Like the AJ, we find that, here, the Agency was under no obligation to provide Complainant with the exact accommodation that he sought.
Further, we also find that the Agency articulated a legitimate, nondiscriminatory reason for giving Complainant a "Fully Successful" performance rating, namely, that he performed at that level. The Agency explained that the year before he received an Excellent rating because he was the only ISO on site and had to perform above and beyond what was expected. This was no longer the case with the addition of two new ISOs. Complainant has not established that his performance was at a level higher than "Fully Successful."
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.
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
____2/21/13______________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114251