0120121298
05-08-2013
William E. Mack, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
William E. Mack,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120121298
Hearing No. 531-2011-00038X
Agency No. OCO-2010-0099-SSA
DECISION
On January 18, 2012, Complainant filed an appeal from the Agency's February 7, 2012, final decision 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Material's Handler at the Agency's Mail Center Services facility in Baltimore, Maryland.
On February 16, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (back injury, abdominal wall hernia, and diabetes) when:
1. He received a "3" for his FY 2009 performance appraisal;
2. He was subjected to harassment. In support of his claim of harassment, Complainant alleged that the following events occurred:
a. His Branch Manager (Manager) made the following statement in reference to his request for reasonable accommodation, "I don't believe that the conditions you listed in block number three are disabling conditions," is "out of place."
b. The Supervisor discussed his medical situation with the Manager without his approval, which is a violation of the Health Insurance Portability and Accountability Act of 1996.
c. Complainant was not allowed to work credit hours since filing a reasonable accommodation request.
d. Complainant is not allowed to use the computer to work on his Individual Development Plan (IDP).
Complainant then alleged that he was subjected to retaliatory harassment. In support of claim (3), Complainant indicated that on May 17, 2010, during a discussion about clarification of what he would be doing on a daily basis, his foreman (Foreman) state, "You think that you're better than anyone." Complainant responded with, "From this day forward [Foreman], anytime you need to discuss something with me, I would like a union representative present." The Foreman's response was, "You are an asshole, and I am going to make sure you are removed from this section and you are not going to get what you are asking for, so you might as well retire."
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). On August 24, 2010, Complainant requested a hearing but the AJ dismissed the hearing. The AJ, in the dismissal decision, noted the procedural history of the hearing recounting Complainant's failure to comply with discovery requests from the Agency. Further, when Complainant responded to discovery, his responses were incomplete and unsigned. Based on Complainant's failure to provide the requested information, the Agency filed a Motion to Compel which the AJ granted on March 21, 2011. Complainant was ordered at that time to respond to the Agency's discovery requests by March 31, 2011, or face sanctions. When Complainant failed to respond, the Agency filed its Motion for Sanctions on March 31, 2011. On April 12, 2011, Complainant responded to the Agency's discovery requests. However, the AJ found that the response were still inadequate.
On April 12, 2011, the Agency filed a Reply to its Motion for Sanctions. On April 26, 2011, the Agency provided its witness list. Complainant failed to submit such a list until May 11, 2011, the date of the AJ's teleconference with the parties. The AJ discussed the Agency's Motion for Sanctions with the parties at the teleconference. Complainant stated in response that he was seeking "a reasonable accommodation due to [his] jury duty and medical issues." The AJ noted that Complainant had not mentioned any medical problem or reasonable accommodation request. The parties had set another telephone conference call for July 7, 2011. On that day, the AJ and Agency participated in the teleconference. However, Complainant's representative did not appear. The Agency tried to reach the Representative but could not reach him. Neither Complainant nor the Representative called in that day. As such, the Agency filed its Motion to Dismiss the hearing. The AJ granted the Motion on November 22, 2011.
The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). During this time, Complainant filed an appeal with the Commission stating that this was a case of denial of reasonable accommodation. He claimed that disabled employees are being forced to retire due to the lack of reasonable accommodation. Subsequently, the Agency issued its final decision. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The Agency issued its final decision on February 7, 2012, finding no discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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").
AJ's Motion to Dismiss
An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3); EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 7, 9-10 (1999). However, such sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his or her discretion to impose a harsher sanction.
In the case at hand, Complainant appealed the AJ's decision dismissing the hearing. The AJ issued sanctions against Complainant, in the form of dismissing his hearing request, because he did not respond to the Agency's discovery requests, Motion to Compel, or Motion to Dismiss. In addition, Complainant and the Representative failed to attend a teleconference on July 7, 2011. We note that in the hearing record and on appeal, Complainant and the Representative stated that they required "reasonable accommodations" but did not express what specific accommodation they needed. Further, we note that Complainant and the Representative did not make this assertion to the AJ until August 12, 2011. The Representative stated that "weather issues...death, and family issues played a part as well as the occasional lost mail and jury duty." The Representative made these assertions without providing any additional information. Even on appeal, Complainant stated that he was denied reasonable accommodation but did not expressly indicate what accommodation he required and how it was denied as it related to the hearing process. Based on our review of the record, we find that the AJ did not abuse his discretion when he issued sanctions against Complainant.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). 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, Complainant bears the ultimate responsibility to persuade the fact finder 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). In claim (1), Complainant asserted that he was given a "3" on his performance rating due to his medical condition. The Supervisor averred that he was given a "3" because Complainant did not do much at work. He asserted that Complainant shows up to work, signs in, and sleeps for part of the day. The Supervisor also noted that he did not speak with anyone at the Department of Labor regarding Complainant's performance as he alleged. In claim (2)(c), the Supervisor stated that all employees were informed that they could not work credit hours unless they appraised him of it first. As to claim (2)(d), the Supervisor indicated that Complainant could use the computer for his IDP during Complainant's breaks and his lunch hour. Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant has not shown were pretext for discrimination.
Unlawful Medical Disclosure
We note that in claim (2)(a) and (b), Complainant asserted that the Agency violated the Rehabilitation Act when the Supervisor provided his medical information to the Manager and the Manager made comments about Complainant's request for reasonable accommodation. The Rehabilitation Act was amended in 1992 to apply the standards of the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Enforcement Guidance - Disability Related Inquiries), No. 915.002 (July 26, 2000); Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (March 25, 1997); and EEOC Enforcement Guidance on Preemployment Disability-Related Questions and Medical Examinations (Enforcement Guidance - Preemployment) (October 10, 1995). Because the restrictions on employers with regard to disability-related inquiries and medical examinations apply to all employees, and not just to those with disabilities, it is not necessary to inquire whether the employee is a person with a disability. Enforcement Guidance - Disability Related Inquiries, p. 3.
The Rehabilitation Act places certain limitations on an employer's ability to make disability-related inquires or require medical examinations of employees only if it is job-related and consistent with business necessity. 29 C.F.R. �� 1630.13(b), .14(c). Generally, a disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition."1 Enforcement Guidance - Disability-Related Inquiries, at 15-16. It is the burden of the employer to show that its disability-related inquiries and requests for examination are job-related and consistent with business necessity. Id. at 15-23.
In the case at hand, Complainant alleged that the Supervisor unlawfully disclosed his medical condition to the Manager. Upon review of the record, we find that the Supervisor told the Manager about Complainant's request for reasonable accommodation in order to determine how to proceed with his request. We find that such a disclosure is job-related and consistent with business necessity. As such, we find that the disclose did not constitute a violation of the Rehabilitation Act.
Harassment
Complainant asserted that he was subjected to a hostile work environment in claims (2) and (3).It is well-settled that harassment based on an individual's disability and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) he is a qualified individual with a disability covered under the Rehabilitation Act and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct; (3) the harassment complained of was based on his disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
As noted above, we assume for purposes of analysis that Complainant is an individual with a disability. Complainant asserted that he was subjected to harassment when the Manager discussed his condition; he was not allowed to work credit hours; he was not allowed to use the computer to work on his IDP; and when he had to ask for a union representative when he spoke with the Foreman. As to the events involving the Manager, we noted above that it was appropriate for the Supervisor to discuss Complainant's reasonable accommodation request with the Manager. As to the issue of credit hours, the Supervisor averred that all employees were informed that they could not work credit hours unless they informed him of it first. Further, as to the IDP, the Supervisor clarified that Complainant that he could use the computer during lunch or while on breaks. Upon review of the record, we find that Complainant has not asserted events, if taken as a whole, constitute a hostile work environment or that the events alleged occurred because of his purported disability. As such, we conclude that Complainant has not shown that he was subjected to harassment based on his disability.
In claim (3), Complainant asserted that the Agency's action consisted retaliatory harassment. Upon review, we find that this event alone is not sufficient to create an intimidating, hostile or offensive work environment. As such, we conclude that Complainant has not shown that he was subjected to retaliatory harassment.
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 decision finding no discrimination.
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
May 8, 2013
__________________
Date
1 "Direct threat" means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. � 1630.2(r).
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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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