Avery R.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionOct 23, 20180120170705 (E.E.O.C. Oct. 23, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Avery R.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120170705 Hearing No. 480-2013-00354X Agency No. 200P06912012102798 DECISION On November 21, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 26, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant failed to establish he was discriminated against based on his disability when on March 8, 2012, his requested reasonable accommodation was denied. BACKGROUND Complainant filed a formal complaint against the Agency. 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 Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120170705 2 Over Complainant's objections, the AJ assigned to the case granted the Agency’s August 4, 2016, Motion for Summary Judgment, to which Complainant filed an opposition on August 23, 2016. The AJ issued a decision without a hearing on September 22, 2016. 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. At the time of events giving rise to this complaint, Complainant worked as a Staff Physician at the Agency’s Los Angeles Ambulatory Care Clinic facility in Los Angeles, California. The AJ’s decision clearly articulates the facts of record, and the instant decision incorporates them by reference. On August 2, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability as articulated in the statement of “Issues Presented” above. CONTENTIONS ON APPEAL On appeal, Complainant requests that the Commission reverse the Agency’s final order implementing the AJ’s decision finding that he failed to establish he was denied a reasonable accommodation. Complainant contends that he provided the Agency with all the requested information, but that the Agency failed to review the information and make a decision on his request for an accommodation, nor did it ever advise Complainant of anything additional that was needed to support his request. 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 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both 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”). 0120170705 3 ANALYSIS AND FINDINGS We must 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). After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ’s issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency’s motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ’s decision without a hearing was appropriate. Denial of Reasonable Accommodation 0120170705 4 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. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish disability discrimination, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). “[T]he word ‘accommodation’ ... conveys the need for effectiveness.” Id. “An ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled individual’s limitations.” Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. See Guidance. A complainant who seeks to hold an agency liable for failing to accommodate a disability need not show that they have suffered an adverse employment action. An agency is required to accommodate an employee’s disability whether or not a failure to do so is motivated by discrimination based on that disability. For purposes of analysis only, we will assume, without so finding, that Complainant is a qualified individual with a disability. Complainant, however, has not shown that the Agency failed to provide him with an accommodation to which he was entitled. The record reflects that following his stroke, Complainant was unable to perform the essential functions of his position as a Staff Physician without an accommodation. Complainant advised the Agency of his need for a reasonable accommodation through orders from his doctor that initially requesting leave. On or around August 30, 2011, while still experiencing some effects of the stroke, Complainant further requested to work a reduced work schedule, the opportunity to work online, or an opportunity to work so that there was not as much movement or activity. While the Agency honored Complainant’s leave request, it requested additional medical documentation to support the August 30th requests. Complainant provided the requested information on or around September 1, 2011, but he remained on extended leave. By October, Complainant had used up his regularly accrued leave hours, and he requested FMLA leave for 12 weeks, to be enrolled in the voluntary leave donation program, and that the Agency audit his records to see if he was entitled to any additional leave. The accompanying paperwork from his doctor indicated that Complainant was and would be incapacitated from July 18, 2011, until December 31, 2011. The paperwork advised that Complainant could return to work in January at a reduced schedule until March, and that his abilities would be reassessed at that time. 0120170705 5 The Agency approved Complainant’s leave through December 31, 2011, and in mid-December Complainant inquired about the status of his other requests at which time Complainant was advised that he had not submitted the requested supporting documentation. Complainant was advised that his FMLA paperwork could not be used as the requested supporting documentation. On or around January 13, 2012, Complainant authorized a limited release of his medical records as they pertained to his reasonable accommodation request. With some additional information regarding Complainant’s limitations from his doctor, the Agency attempted to find an alternative position that complied with his restrictions. The Agency was unable to locate a vacant position that matched Complainant’s restrictions. The Agency continued to accommodate Complainant through leave, reduced schedules and light activity until on or around February 17, 2012, when Complainant’s doctor provided a note that indicated he had made a “remarkable recovery” and could return to work full time at which time the Agency determined he was no longer in need of a reasonable accommodation. Although Complainant contends that the Agency’s error with respect to requesting supporting information from him resulted in a delay in his accommodations, the record reflects this is inaccurate. Even during the times when the Agency requested additional information from Complainant, when he had exhausted all leave, or when he had been cleared for full-time work, the record reflects the Agency still permitted Complainant to take intermittent leave as requested and gave him a lighter workload. A qualified individual with a disability is entitled to a reasonable accommodation, but he is not necessarily entitled to the accommodation of choice. See Castaneda v. United States Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). The employer may choose among reasonable accommodations so long as the chosen accommodation is effective. Barnett, 533 U.S. at 400. In this case, we find that the Agency took care in assessing which accommodations would be most effective for Complainant, and still permitted him to perform some work for the Agency. Complainant identified those accommodations and each time the Agency took steps to have them put in place. We find insufficient evidence showing that any delay in obtaining the requested supporting information significantly impacted his receipt of accommodations. Complainant’s duties were already significantly reduced in accordance with his medical restrictions. Accordingly, we find that Complainant did not establish that he was denied a reasonable accommodation as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to establish that he was denied a reasonable accommodation on March 8, 2012. We AFFIRM the Agency’s final order. 0120170705 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120170705 7 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 23, 2018 Date Copy with citationCopy as parenthetical citation