0120110680
06-26-2013
Tracy L. Kendall, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Tracy L. Kendall,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110680
Hearing No. 510-2010-00009x
Agency No. 200I05162009102024
DECISION
On November 10, 2010, Complainant filed an appeal from the Agency's October 7, 2010, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it 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 and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that he was discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant applied for the position of Engineering Technician (Drafting), GS-7, under Vacancy Announcement MPA 08-135. On January 10, 2009, he was informed he was not selected for the position. Thereafter, Complainant applied for the position of Housekeeping Aide and was hired for the position. On June 2, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and reprisal for prior protected EEO activity when:
1. on January 10, 2009, he was not selected for the position of Engineering Technician (Drafting), GS-7, under Vacancy Announcement MPA 08-135;
2. he was not provided a reasonable accommodation when he was hired for the position of Housekeeping Aid on or about February 9, 2009; and
3. on May 19, 2009, his employment was terminated.
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. Over Complainant's objections, the AJ assigned to the case granted the Agency's February 17, 2010, motion for a decision without a hearing and issued a decision without a hearing on August 25, 2010.
The AJ found the following facts: Complainant is a veteran who has undergone service related bilateral knee replacements. In May, 2008, the Agency announced a vacancy for the position of Engineering Technician (Drafting), GS-802-7. Complainant applied for the position and was found to be qualified. Complainant applied under the Veterans Recruitment Appointment authority; however, another candidate was selected. By letter dated November 18, 2008, Complainant was notified that he was not selected. In response, Complainant went to the Agency's Human Resources Office in January 2009, where, among other things, he told the Acting Human Resources Officer and Human Resources Specialist that he was a veteran with bilateral knee replacements and "was desperate" for employment. The AJ found that Complainant was told that as long he could pass a physical examination "the way to get into the Agency was [to] take a housekeeping job." Complainant applied for and by letter dated January 26, 2009, was selected for a Housekeeping Aid Position after having passed a physical examination.
Although Complainant indicated during the physical examination that he had bilateral knee replacements, he also indicated he had no "medical disorder or physical impairment which would interfere in any way with the full performance of the duties" associated with the Housekeeping Aid Position. Complainant began the Housekeeping Aid Position on or about February 1, 2009, and attended several days of orientation. He was then assigned to work at remodeling a new mental health wing, where he vacuumed, cleaned "toilets, sinks etc."
On February 9, 2009, he was instructed to mop a floor. Complainant refused because he said he was not able to work on a wet surface. He was informed that to perform the "housekeeping job, he would have to be willing to work on wet surfaces and do other things that were incompatible with his two artificial knees." Complainant was on his way to resign, when he ran into an associate, who encouraged him to request a reasonable accommodation. Complainant was provided an "Application Package" in order to request an accommodation.
On or about February 16 or 19, 2009, Complainant submitted his request for a reasonable accommodation to the Acting Assistant Chief of Environmental Management Services. According to Complainant, when asked what job he wanted he indicated the Draftsman job. Complainant also indicated in his reasonable accommodation application that there were other jobs he could perform, such as mowing the grass or office tasks. Complainant subsequently provided medical documentation dated March 2. 2009, from his physician, stating that after his review of the Housekeeping Aid Position, Complainant was "unable to do this job and will need to be retrained for a desk job position."
By letter dated March 13, 2009, Complainant was advised that his employment was being terminated effective March 16, 2009, for his "failure to qualify during [his] trial period."
With regard to claim 1, the AJ found that Complainant established a prima facie case of disability discrimination. The AJ further determined that the Agency proffered legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ found that the selectee possessed experience in the type of work performed in the position. The AJ noted that despite Complainant having been trained for this type of position, Complainant failed to demonstrate that the Agency's reasons for selecting the selectee were a pretext for discrimination.
With regard to claim 2, the AJ found that Complainant's physician stated that he could not perform the position of Housekeeping Aid. Further, the AJ found that Complainant failed to identify a vacant, funded position for which he would have been able to be placed where he could perform the essential functions of the position with or without an accommodation.
With regard to claim 3, the AJ found that Complainant failed to establish a prima facie case of retaliation. The AJ found that at the time Complainant was terminated, the Chief of the Environmental Management Service who recommended that Complainant be terminated had no knowledge of Complainant's prior EEO activity.
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 makes numerous contentions. Complainant's main arguments are that: the AJ erred in issuing a decision without a hearing because the AJ failed to consider the facts in the light most favorable to him; he established that the Agency's reasons for not selecting him are a pretext for discrimination; the Agency failed to provide him a reasonable accommodation; and the Agency retaliated against him when he was terminated. Complainant also argues that the final order should be reversed and a hearing ordered for claims 1 and 3. He also requests that the Commission find that the Agency failed to accommodate him with regard to claim 2 and retaliated against him with regard to claim 3. The Agency argues that the AJ appropriately issued a decision without a hearing and requests that we affirm its final order adopting the AJ's finding of no discrimination.
ANALYSIS AND FINDINGS
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 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. 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).
We find that after a careful review of the record, the AJ appropriately issued a decision without a hearing. We find that record reveals that ample notice of the proposal to issue a decision without a hearing was given to the parties; a comprehensive statement of the allegedly undisputed material facts existed; the parties had the opportunity to respond to such a statement, and the parties had the chance to engage in discovery before responding. Although Complainant argues that the Agency did not provide discovery and that the AJ erred in denying his motion to compel discovery of an agency official, we find that Complainant failed to establish that this testimony was material to the case. Complainant argues that the Agency official would testify as to how the selection certificate was established and how the selectee was placed on the certificate. We find, however, that Complainant has not established how these matters are relevant to the motivation of the selection official who selected the selectee from the list of qualified candidates. Further, we find that the AJ applied the appropriate standard of review for this case. Additionally, we find that the AJ appropriately considered all justifiable inferences based on the record evidence in Complainant's favor.
Nonselection
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first 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; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming arguendo that Complainant established prima facie cases of disability discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to the nonselection, the selecting official (SO) stated in his deposition that he hired the selectee because she had seven years of consistent CAD experience with one company. While Complainant's application was impressive, the SO could not quantify the actual amount of CAD experience Complainant had. SO estimated that Complainant had roughly three years of experience but because his resume lacked specificity, it was not possible to clearly identify how much actual work experience he had. Further, the selectee had consistent work experience and qualified in terms of her education regarding the position.
Because we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to prove that the proffered reason was a pretext for discrimination. Complainant argues that his qualifications were superior to those of Complainant because his education and training were far superior to the SOs. However, we find that Complainant has failed to specifically identify how his training and experience established that his qualifications were superior. Complainant does not establish that he had work experience comparable to the type and length of Complainant. Merely because Complainant possessed training for the relevant position does not establish that he is as qualified as an individual who had been performing similar tasks in the workplace. Further, nothing in the record establishes that the Agency was motivated by a discriminatory animus. As such, we find that Complainant failed to establish that the Agency's proffered reasons for his nonselection were a pretext for discrimination.
Additionally, to the extent that Complainant is alleged that the selectee was preselected, we note that while we are not convinced that preselection occurred, we note that we have held that preselection, per se, does not establish discrimination when it is based on qualifications of the selected individual and not some prohibited basis. McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994). Because we find that Complainant has failed to offer probative evidence demonstrating that the Agency's selection decision was based on any prohibited bases, we also find that even if the selectee was preselected, no discrimination occurred.
Termination
With regard to Complainant's termination, we find that assuming arguendo that Complainant established a prima facie case of disability discrimination and retaliation, the Agency articulated legitimate, nondiscriminatory reasons for terminating him. Specifically, the Acting
Assistant Chief of Environmental Management Services stated that he recommended that Complainant be terminated because Complainant was unable to perform the essential functions of the position for which he was hired, was Absent without Leave, and did not follow his instructions to call in daily to report his absence. The Chief of Environmental Management Services stated that he concurred with the termination recommendation during Complainant's probationary period.
Because we find the Agency articulated legitimate, nondiscriminatory reasons for its actions, we turn to Complainant's burden to prove that the Agency's proffered reasons are not worthy of credence. We find that Complainant has failed to do so. Complainant argues that the timing of his termination is so close to his request for an accommodation that this creates an inference of reprisal. We find, however, that Complainant has not offered any evidence to show that the Agency's stated reasons for terminating him were not true. We note that Complainant's physician stated that Complainant was unable to do the work of the position and would need to be "retrained for a desk job position due to permanent restrictions." Accordingly, we find that Complainant's own evidence shows that he could not perform the essential functions of his position with or without an accommodation. We also note that he was Absent without Leave and did not follow instructions. As such, Complainant has not shown that his termination during his probationary period was based on discriminatory animus.
Reasonable Accommodation
Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p). As a threshold matter, Complainant must establish that he is an "individual with a disability." An individual with a disability is one who (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment. Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
Assuming, for purposes of this decision only, that Complainant is an individual with a disability, we find that he is unable to establish that he is a qualified individual with a disability. A qualified individual with a disability is one who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Here, Complainant's own physician stated that he could not perform the duties of the Housekeeping Aide position. Likewise, with respect to his request for a reassignment as an accommodation, Complainant would have to show that there was a vacant, funded position for which he was qualified and to which he could have been reassigned. Complainant has an evidentiary burden in such reassignment cases to establish that it is more likely than not (preponderance of the evidence) that there were vacancies during the relevant time period into which he could have been reassigned. See Mills v. Department of the Treasury, EEOC Appeal No. 0120112511 (April 9, 2013). The record before us does not establish that, more likely than not, there was a vacant, funded position, for which Complainant was qualified and to which he could have been reassigned.
Accordingly, we do not find that he established that he was denied 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 adopting the AJ's decision without a hearing finding that Complainant failed to establish he was discriminated against as alleged.
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
___6/26/13_______________
Date
2
0120110680
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120110680