0120111876
01-31-2013
Robin O'Connor, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Robin O'Connor,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120111876
Hearing No. 430-2009-00216X
Agency No. DON-08-61414-01892
DECISION
Complainant filed an appeal from the Agency's January 24, 2011, final order concerning her 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.
ISSUES PRESENTED
The issues presented are: 1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing in favor of the Agency regarding Complainant's claim that she was subjected to reprisal because of prior EEO activity with respect to claims 1 through 3; and 2) whether substantial evidence supports the AJ's finding that Complainant failed to prove that she was subjected to unlawful discrimination or harassment with respect to her remaining claims.
BACKGROUND
At the events at issue arose, Complainant worked as a Police Officer, GS-05, at the Agency's Sewell Point, Virginia facility. Complainant worked as a Police Officer for 23 years. From April 1989 until April 2008, Complainant's duties were primarily as a Warrant Officer, which involved processing city papers, subpoenas, show cause orders, warrants, and protective orders. Complainant did not wear a uniform when she performed Warrant Officer duties. On April 3, 2008, Complainant received a notice of Proposed Suspension because of two prior incidents that are not the subject matter of this complaint. On April 4, 2008, as a result of the two incidents, the Agency reassigned Complainant to the Law Enforcement Division with the work hours of 4:00 a.m. until noon.
In correspondence dated April 9 2008, Complainant asked the Agency to provide her with a reasonable accommodation because of her multiple medical conditions, including Crohn's Disease, Grave's Disease, and Fibromyalgia. The correspondence further stated that Complainant was unable to work in the position she was assigned on April 4, 2008, but Complainant could perform the duties of her previous position. Additionally, the correspondence stated that Complainant would remain out of work for one month because she was unable to perform the duties of her current position.
On April 15, 2008, the Agency issued Complainant a written request for clarification of medical documentation in which it asked Complainant to provide documentation regarding the nature of her medical condition, how the medical condition specifically limited her ability to perform the essential functions of her job, the anticipated duration of the limitations, and specific accommodations for her condition. On April 22, 2008, Naval Criminal Investigative Services (NCIS) initiated an investigation of evidence-handling during Complainant's tenure as an Evidence Custodian. NSIS investigators concluded that there had been 462 deficiencies in evidence handling, control, and cataloguing.
In a letter dated April 18, 2008, Doctor 1 stated that he evaluated Complainant for progressive generalized pain muscle spasms, paresthesia, and fatigue. HT, p. 107. Doctor 1 also stated that Complainant was diagnosed with Fibromyalgia, that physical activity exacerbates her symptoms, and that pain medications caused her to experience somnolence that can slow her reaction time. Doctor 1 further stated that Complainant's prognosis and recovery time were unclear.
In a letter dated May 27, 2008, Complainant's attorney informed the Agency that Complainant would be medically released for duty on May 30, 2008. The letter further stated that Complainant was restricted from lifting, prolonged standing, and performing more than very limited driving. The letter stated that there was concern for Complainant experiencing numbness in her legs and drowsiness induced by Vicodin and Lyrica. The letter concluded that Complainant could be accommodated by working at the Pass Office at Northwest or Oceana or the Dispatch Office at Oceana or the Norfolk Naval Shipyard. Oceana is 25.2 miles from Complainant's home, Norfolk Naval Shipyard is 18.8 miles away from her home, and Northwest is 6.51 miles from Complainant's home. In a note dated May 30, 2008, Doctor 1 informed the Agency that Complainant was restricted from lifting more than five pounds, standing more than five minutes, sitting more than 10 minutes, or driving more than five miles. Report of Investigation (ROI), p. 104.
In April 2008, Complainant was temporarily reassigned to work in the camera room, although she did not return to work until June 2008. On September 29, 2008, Complainant's supervisor (S1) made a written request for her to clarify her medical documentation with respect to whether her medical condition was permanent or temporary; the expected duration of the medical condition; how the condition impacted her major life activities; the extent to which the impairment limited her ability to perform major life activities; an assessment of her ability to perform the essential functions of her job with or without an accommodation; and the particular accommodation requested. Complainant subsequently submitted medical documentation from Doctor 1 that stated that Complainant was diagnosed with Chronic Pain Syndrome, which limited her ability to stand for long periods of time, drive long distances, and lift more than five to ten pounds frequently. Doctor 1 recommended that Complainant be placed in a desk job as reasonable accommodation.
In September 2009, Complainant applied for disability retirement. In January 2010, Complainant was formally reassigned to the position of Guard in the camera room. On February 12, 2010, S1 notified Complainant that she would be reassigned to work on the night shift in the camera room as a medical accommodation. The night shift began at 8:00 p.m. and ended at 4:00 a.m. On May 5, 2010, Doctor 1 informed the Agency that Complainant's permanent medical condition made her unable to work in any capacity.
On July 23, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability, and in reprisal for prior protected EEO activity when:
1. Since June 4, 2008, Complainant has been restricted to the camera room, smoking area, lunch room, and bathroom of Building CEP-161;
2. On June 3, 2008, Complainant was ordered to purchase a uniform and be in the uniform, and a proposed pre-action investigation was initiated against her for not following the direction to be in uniform;
3. On April 15, 2008, Complainant was required to provide more detailed medical documentation than other employees on light and restricted duty;
4. Since early April 2008, Complainant has been ordered to not teach courses she is qualified to teach and has taught in the past;
5. Since June 2, 2008, the Agency directed Complainant to work under conditions that violated her medical restrictions by requiring her to travel 54 miles beyond her medical restrictions and failing to respond to her request for a reasonable accommodation; and
6. The Agency retaliated against Complainant when it transferred her to the 8:00 p.m. to 4:00 a.m. shift (midnight shift).
AJ's Decision without a Hearing
At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing. The Agency moved for summary judgment, and Complainant responded in opposition to the Agency's motion. On October 21, 2010, the AJ partially granted the Agency's motion with respect to Complainant's claim that she was subjected to reprisal for claims 1 through 3. Specifically, the AJ found that Complainant could not establish a prima facie case of reprisal for these matters because her prior EEO complaint was resolved in 1992, and Complainant's next EEO activity was not until she contacted an EEO Counselor for the instant matter on June 13, 2008, after the events in claims 1 through 3 occurred. Therefore, the AJ concluded that there was no nexus between Complainant's EEO activity and Complainant's claim that the first three alleged actions were motivated by reprisal. The AJ denied the Agency's motion for summary judgment with respect to the remaining claims on the basis that the record was not sufficiently developed to make a determination on these matters.
AJ's Decision after a Hearing
Consequently, the AJ held a hearing on the remaining matters on November 4 and 5, 2010, and issued a decision on December 20, 2010. In that decision, the AJ noted that, with respect to claim 1, management instructed Complainant that she could not go to the evidence room, the investigation area, or the administration area because Complainant was under disciplinary investigation because there had been 462 deficiencies in the evidence room during her tenure as Evidence Custodian. The AJ further noted that Complainant admitted that the evidence room was locked and no one was supposed to be in the evidence room who did not work there, and the evidence showed that Complainant often socialized with co-workers in the administration area when she should have been working.
The AJ determined that Complainant's arguments that the Evidence Custodian duties were collateral duties that were not included in her job description, that she did not did not receive proper training for performing those duties, and that she should not have been held accountable for the violations were unpersuasive because not every job duty will be listed in a job description, and training is not always provided for every aspect of a job. The AJ concluded that the Agency's witnesses gave credible testimony regarding the reasons that Complainant was restricted from certain areas, and there was no evidence that the restrictions were motivated by unlawful bias.
With respect to claim 2, the AJ noted that, after Complainant was reassigned to the Law Enforcement Division pending investigation into prior incidents, Complainant's supervisor (S1) required Complainant to report to work in uniform. When Complainant reported to work out of uniform, S1 proposed a pre-action investigation of Complainant. The AJ determined that Complainant had informed S1 that she was not required to wear a uniform pursuant to a 1992 agreement, but there was no evidence that S1 ordered Complainant ordered Complainant to report in uniform or proposed a pre-action investigation because of her sex or disability. The AJ further determined that when S1 learned of Complainant's medical restrictions, he immediately rescinded the order to wear a uniform and cancelled the pre-action investigation. The AJ found that there was no evidence that S1's conduct was motivated by unlawful bias, and the alleged actions could not have created an intimidating, hostile, or offensive work environment.
Regarding claim 3, the AJ determined that the Agency requested reasonable medical documentation from Complainant in order to determine if she was a qualified individual with a disability and to evaluate her request for a reasonable accommodation. The AJ further determined that Complainant's disabilities were not obvious and, therefore, the Agency was entitled to ask Complainant for reasonable documentation about her disability and its functional limitations that required reasonable accommodation. The AJ noted that at least three of the documents provided by Complainant were written by her attorney, not a medical professional. The AJ further noted that the initial documents provided by Complainant to the Agency were extremely general and vague and merely stated, "[Complainant] will be off of work for medical reasons for 1 month." The AJ noted that later documents did not explain Complainant's disability and its functional limitations that required reasonable accommodation, and the physician's letter to the Agency did not identify any specific limitations, restrictions, or accommodations. The AJ concluded that the Agency's requests for additional medical documentation were reasonable and did not constitute unlawful harassment.
With respect to claim 4, the AJ found that Complainant's Acting Supervisor (AS1) told Complainant to notify S1 and her second-level supervisor (S2) before teaching a course and to get approval for overtime. The AJ determined that AS1 gave this instruction before Complainant was diagnosed with Fibromyalgia, requested a reasonable accommodation, or filed her EEO complaint. The AJ further determined that the Agency had other female instructors, and there was no evidence of sex discrimination. The AJ found that AS1 was a credible witness based on her demeanor while testifying, and AS1 credibly testified that she did not tell Complainant that she was not allowed to teach classes but told Complainant to notify S1 and S2 before teaching a course and to get approval for overtime. Accordingly, the AJ found that Complainant failed to establish that the Agency unlawfully harassed or discriminated against her by prohibiting her from teaching classes.
Regarding claim 5, the AJ noted that Complainant requested the following accommodations:
1. On April 9, 2008, Complainant stated that she was unable to perform the job to which she had been transferred as a result of a pending disciplinary investigation, but that she could perform her prior job;
2. On May 30, 2008, Complainant requested a reassignment to the pass office at Northwest or Oceana or the dispatch office at Oceana or Norfolk Naval Shipyard;
3. On June 5, 2008, Complainant requested reassignment to Northwest in the pass or dispatch office and asked that similar duties at other locations also be considered;
4. In November 2008, Complainant's neurologist stated that Complainant could perform a desk job; and
5. On February 25, 2009, Complainant asked to be placed in a position at any command or activity in the commuting area.
The AJ concluded that the Agency provided a reasonable accommodation in the form of a reassignment to the camera room at Sewell's Point, the same location where Complainant already was working, and the evidence reflected that this position met Complainant's medical restrictions regarding lifting, standing and sitting. The AJ noted that Complainant requested several accommodations that would have required her to commute well beyond five miles, including a request for a position at Oceana that would have required her to commute more than 25 miles and a position at Norfolk Naval Shipyard that would have required her to commute almost 19 miles. "The Agency may be required to accommodate a qualified individual with a disability with respect to commuting distances, but Complainant cannot complain that the accommodation provided by the Agency violates her driving restriction while at the same time requesting other accommodations that violate her restriction," the AJ stated. AJ's Decision, p. 12.
The AJ further determined that the Agency was not required to reassign Complainant to the position she requested at Northwest, the closest location to her home, because the position there was not vacant when Complainant requested an accommodation in April 2008 or until at least early 2010. The AJ also determined that, when Complainant requested the Northwest position, another person was in the position, and the Agency was not required to "bump" another employee from the job. The AJ further determined that, although Complainant contends that the position was later filled in August 2010, Complainant was not able to work at all by that time and therefore was not a qualified individual that placed the Agency under an obligation to reassign her.
Additionally, the AJ found unconvincing Complainant's argument that working in the camera room was punitive because the evidence demonstrated that beginning around April 2009, the Agency had fewer options for light-duty positions after a restructuring. The AJ concluded that numerous employees worked in the camera room, although they were not officially assigned there, and there were no other options available for Complainant within her medical restrictions and qualifications. The AJ concluded that there was insufficient evidence to prove that the Agency was motivated by unlawful discrimination when it assigned Complainant to the camera room.
Regarding claim 5, the AJ determined that Complainant was not a qualified individual with a disability during the relevant time period because Complainant was unable to work at all beginning in November 2009. The AJ found that Complainant therefore could not establish a claim of reprisal for prior EEO activity and cannot show that the Agency was retaliating against her for requesting a reasonable accommodation. The AJ further found that even assuming that Complainant was a qualified individual, S1 testified that he moved Complainant to the night shift because more crime was committed at night than during the day. The AJ noted that Complainant testified that she believed that S1 moved her to the night shift because she was taking personal notes about S1, not because of her request for an accommodation or prior EEO activity. The AJ concluded that the Agency's explanation for its actions was more plausible than Complainant's argument, and Complainant failed to demonstrate that the Agency's explanation for transferring her to the night shift was pretext for reprisal.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the Agency chose to not address her request for an accommodation within her driving restrictions and instead assigned her the "punitive assignment" of working in the camera room. Complainant further maintains that no one had worked in the camera room for a very long time and working in the camera room was used as a "punishment assignment" to force employees to retire or leave. Complainant maintains that many of the cameras did not work, and the camera room was not staffed when she was not present. Complainant contends that the cameras were virtually useless at night, as the cameras did not have night vision. Complainant maintains that S1 did not assign her to the midnight shift until after S1 learned about the notes Complainant had taken to support her EEO case.
Complainant also maintains that she was willing to move to other locations so that she could have a shorter commute, but the Northwest Precinct was the ideal solution because it was only six miles from her home. Complainant contends that the Deputy Regional Security Officer (DRSO1) was moved from the Northwest Precinct to the Little Creek Precinct in April 26, 2009, and his replacement (DRSO2) was not reassigned to the Northwest Precinct until August 2, 2009, which means there was a vacant position at the Northwest Precinct when Complainant sought an accommodation. Complainant contends that the Agency was aware of her request for an accommodation made on May 30, 2008, and June 5, 2008, well before DRSO1 vacated the position. Complainant further contends that DRSO1 was reassigned to the Little Creek Precinct on April 26 2009, which means this Northwest Precinct position was vacant after April 26, 2009.
The Agency urges the Commission to affirm its final order, noting that there were no unresolved questions of material fact with regard to the matters on which the AJ granted its motion for summary judgment, and that the AJ's decision following a hearing on the remaining matters is supported by substantial evidence of records.
STANDARDS OF REVIEW
For a decision without a hearing, 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 Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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. Id. at Chap. 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").
Regarding our appellate review of the AJ's decision after a hearing, pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment and Hostile Work Environment
Complainant's complaint can be analyzed under both disparate treatment and hostile work environment analyses. In order 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). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 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 Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In order to establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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 environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Decision without a Hearing
We first determine whether it was appropriate for the AJ to have issued a decision without a hearing based on the 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 Defense, 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). After a careful review of the record we find that there was no genuine issue of material fact or credibility determination required so as to warrant a hearing.
Further, we note that, the events in this case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. However, for purposes of analysis and without so finding, we assume for the sake of argument that Complainant is an individual with a disability. Moreover, although the AJ found that Complainant could not establish a prima facie case of reprisal with respect to claims 1 through 3, we assume for the sake of argument that Complainant established a prima facie case of reprisal with respect to these matters. Nevertheless, we find that, for claims 1 through 3, the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, in response to claim 1, the Agency stated that management instructed Complainant to not go to the evidence room, the investigation area, or the administration area because Complainant was under disciplinary investigation because there had been 462 deficiencies in the evidence room during her tenure as Evidence Custodian. In response to claim 2, S1 stated that he rescinded the pre-action investigation when he learned from documentation that there was no reason to place her in a uniform, because of her medical restrictions. Regarding claim 3, the Agency stated that it requested more documentation from Complainant about her medical conditions and requested accommodations because the initial documented she submitted was too vague.
Upon review, we find that Complainant failed to provide any evidence from which a reasonable fact-finder could conclude that the Agency's explanations for reprisal claims 1 through 3 were pretext for unlawful discrimination. Consequently, we find that AJ properly found that Complainant failed to prove retaliation with respect to these matters for the reasons set forth in this decision.
Decision after a Hearing
Upon review, we find that the Agency provided legitimate, non-discriminatory reasons for each alleged action. Specifically, as recounted above, the Agency stated that management instructed Complainant to not go to the evidence room, the investigation area, or the administration area because Complainant was under disciplinary investigation because there had been 462 deficiencies in the evidence room during her tenure as Evidence Custodian. S1 testified that it would not have been proper for Complainant to enter the evidence room because it would have been improper to have someone under investigation in the area where they were being investigated. Likewise, he stated that he did not want Complainant to go into the investigation area because he did not want her to be privy to any criminal investigations or administrative investigations, and investigations were not a part of Complainant's job function. S1 also testified that he did not want Complainant in the administrative area because her assigned duties were in the camera room, and the administrative section did not contain anything that was related to working in the camera room. S1 testified that Complainant's restrictions became a "moot point" when she was transferred to the night shift because the evidence room was closed at night, and only one detective worked in the administrative section.
Regarding claim 2, S1 testified that after he assigned Complainant to the day shift in the Uniform Branch and instructed Complainant to wear a uniform, Complainant informed him that there was a 1992 settlement agreement that allowed her not to wear a uniform. S1 testified that he told Complainant that he would research the matter, but in the meantime, she must "make all preparations for getting uniforms together." Hearing Transcript (HT), p. 68. S1 further testified that Complainant then took leave for seven or eight weeks, and when she returned, he instructed her Watch Commander to institute or conduct a pre-action investigation into her failure to follow S1's orders. S1 further testified that he rescinded the pre-action investigation when he learned from documentation that there was no reason to place her in a uniform, because of her medical restrictions.
With respect to claim 3, Agency officials stated that they requested more documentation from Complainant about her disabilities and requested accommodations because the initial documented she submitted was too vague. Regarding claim 4, S1 testified that he did not order Complainant not to teach or train and there was no prohibition on Complainant teaching courses. Regarding claim 5, S1 testified that he could not assign Complainant to the Pass Office or the Dispatch Center because these areas were transferred to work for Emergency Management, which is a different entity. S1 stated that he was extremely limited with options to reassign Complainant.
Regarding claim 6, S1 stated that when he decided to permanently reassign Complainant to the night shift, there were no other employees working that shift in the camera room. S1 testified that he decided to move Complainant to the night shift because more crimes occurred at night than during the day.
Complainant maintains that working in the camera room was a "punishment assignment." However, S1 testified that Complainant was paid more than day shift employees because she received night differential pay and she fulfilled a police function by working in the camera room. As such, Complainant has not shown that the Agency intended to punish her because of her EEO activity when it assigned her to work the night shift in the camera room. Complainant further maintains that the cameras did not have infra-red capabilities, and many of the 16 cameras were not functioning properly. We note that S1 testified that the cameras could be used at night when placed in well-lit areas, and some of the cameras had not been repaired because of a limited budget.
We find that substantial evidence in the record supports the AJ's determination that Complainant failed to prove that the agency's explanations were pretext for unlawful discrimination. In so finding, we note that many of Complainant's assertions are essentially Complainant's objections to the Agency's business decisions. In the absence of evidence of unlawful discrimination, the Commission cannot second guess an employer's business decisions. Texas Dep't of Coram. Affairs v. Burdine, 450 U.S. 248, 249 (1981).
Likewise, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000)
Reasonable Accommodation
Claim 5 can also be analyzed as a reasonable accommodation claim. Complainant requested a reasonable accommodation when she presented documentation to the Agency on or about April 9, 2008, that reflected that she could not perform the duties of her position because of her medical condition. Complainant was restricted from lifting more than five pounds, standing more than five minutes, sitting more than 10 minutes, or driving more than five miles. On May 30, 2008, Complainant requested reassignment to facilities at the Northwest Precinct, Oceana Precinct, or the Norfolk Naval Shipyard. 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.
S1 testified that he assigned Complainant to the Law Enforcement division on April 2, 2008, but he was not aware of Complainant having any medical restrictions at that time. However, S1 stated that when he learned about Complainant's medical restrictions for the first time on or about April 9, 2008, he took her off of patrol duty and assigned her to work in the camera room. The record reflects that Complainant was assigned sedentary duties in the camera room that were within her lifting, standing, and sitting restrictions.
Complainant maintains that the Agency did not provide her with a reasonable accommodation because she still had to commute to Sewell Point. However, we note that Complainant informed the Agency that she could be accommodated by working at offices at the Norfolk, Oceana, or Norfolk Naval Shipyard. Oceana Precinct is 25.20 miles from Complainant's home, Norfolk Naval Shipyard is 18.8 miles away from her home, and Northwest Precinct is 6.51 miles from Complainant's home. Therefore, all of Complainant's requested reassignments would have also violated Complainant's five-mile driving restriction. Consequently, we concur with the AJ's finding that Complainant cannot complain that the accommodation provided by the Agency violates her driving restriction while at the same time requesting other accommodations that also violate her driving restriction.
Further, Complainant cannot show that, during the relevant time period, a vacant funded position for which she was qualified existed within five miles of her home. Complainant maintains that there was a vacancy at the Northwest Precinct because DRSO1 was moved from the Northwest Precinct to another precinct in April 26, 2009, and his replacement, DRSO2, was not reassigned to the Northwest Precinct until August 2, 2009. However, the Agency's Staffing Specialist testified that DRSO1 experienced "medical issues" that prevented him from working in his position by himself. Therefore, in September 2009, the Agency temporarily detailed a Pass and ID Clerk (DRSO2) from Norfolk Naval Station to Northwest as part of a "detail swap." Thus, the position was not vacant while DRSO1 was on a detail assignment. Complainant maintains that a Standard Form (SF-50) reflects that DRSO1 was reassigned from Northwest Precinct on April 26, 2009. However, the Staffing Specialist testified that this document merely reflected an organizational realignment of DRSO1's position, not the physical reassignment of the employee to a different position or precinct.
Upon review, we are persuaded that DRSO1 encumbered the Northwest Annex position until August 2010. Thus, DRSO1's position was not a vacant position until August 2010. As determined by the AJ, Complainant was unable to work at all by August 2010; therefore, she was not qualified for reassignment to DRSO1's after it became vacant. Thus, we find that substantial evidence supports the AJ's finding that the Agency provided Complainant with a reasonable accommodation with the aforementioned actions, and Complainant failed to prove that the Agency denied her a reasonable accommodation.
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 for the reasons set forth in this decision.
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
January 31, 2013
Date
2
0120111876
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111876