0120100440
09-29-2011
Benji L. Fleming, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Benji L. Fleming,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120100440
Agency No. P-2008-0182
DECISION
On October 31, 2009, Complainant filed an appeal from the Agency’s
August 12, 2009, 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 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 Correctional Officer at the Agency’s Federal Correctional Institution
facility in Williamsburg, South Carolina. Complainant indicated that
since 2003 he has experienced some damage to his ears and hearing loss
due to a work-related injury.
Briefly, the record shows that in October 2007, Complainant was assigned
to work in the housing units. In November 2007, Complainant asked to be
moved to a different post, indicating that the noise level in the housing
units irritated his ears. He asked to be assigned to a post with lower
noise levels. Complainant said he was forced to take two days off as a
result of the irritation to his ears.
In response to his request, Complainant was reassigned away from
the housing units to work at an outside post. On January 17, 2008,
a Lieutenant saw Complainant at his outdoor post wearing a ski mask
which covered his face. The Lieutenant told Complainant that he could
not cover his face because it was not safe or professional. Complainant
indicated that he needed the ski mask because the cold bothered his ears.
Complainant believed that the Lieutenant was retaliating against him
for requesting an accommodation. Complainant claimed he was further
retaliated against on January 23, 2008, when his supervisors reassigned
him to the Mobile One unit and away from the Disturbance Control Team.
Believing he had been subjected to discrimination, Complainant filed
an EEO complaint alleging that the Agency discriminated against him
on the bases of disability (perforated ear damage and hearing loss)
and reprisal for requesting a reasonable accommodation when:
1. On October 3 and 4, 2007, Complainant’s request for reasonable
accommodation regarding his hearing loss was denied. Additionally, his
supervisor refused to change his job assignment from the housing units,
thus irritating his hearing and causing him to miss two (2) days of work.
2. On January 16, 2008, he was asked to remove his cold weather gear from
his facial area in retaliation for asking for a reasonable accommodation.
3. On January 23, 2008, Complainant’s roster was adjusted to Mobile One
which Complainant believed was in retaliation for asking for a reasonable
accommodation for his hearing loss.
4. On January 24, 2008, his request for relief from duties to file an
EEO complaint was denied.
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). In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as
alleged.
This appeal followed. On appeal, Complainant asserted that the
Agency failed to provide him with a reasonable accommodation and
retaliated against him for requesting accommodation in violation of the
Rehabilitation Act. Complainant noted that he could have been offered
ear plugs in order to work or other protective weather gear.
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”).
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. For the purposes of analysis, we assume Complainant
is an individual with a disability. 29 C.F.R. § 1630.2(g)(1).
Complainant also must show that he is a “qualified” individual
with a disability within the meaning of 29 C.F.R. § 1630.2(m).
It is the Commission's position that if more than one accommodation is
effective, "the preference of the individual with a disability should
be given primary consideration; however, the employer providing the
accommodation has the ultimate discretion to choose between effective
accommodations." 29 C.F.R. ' 1630.9; see also EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, No. 915.002, Question 9 (revised Oct. 17, 2002);
Polen v. Dep’t of Defense, EEOC Appeal No. 01970984 (Jan. 16, 2001).
The record showed that Complainant’s request to be assigned from
the housing units due to noise levels was granted by the Agency and
he was moved to an outdoor post where the noise levels were much
lower. Complainant did not provide the Agency with any alternatives
following his request for a reassignment as an accommodation. It was
only on appeal that Complainant suggested ear plugs. In addition, we
note that when Complainant was assigned outside and wore the ski mask,
management asked him to uncover his face. However, there is no indication
in the record that he was told to uncover his ears. Agency witnesses
assert Complainant could have worn the ski mask like a hat as long as his
face was uncovered. This way, Complainant could have still protected his
ears from the cold. Finally, after Complainant complained about the cold
temperatures, Complainant was moved to the Mobile One unit. The Agency
noted that it was inside, but away from the noises involved in the
housing units post. Management witnesses stated that they had concerns
with Complainant remaining on the Disturbance Control Team because it
also involved exposure to high noise levels including “flash bangs.”
Thus, upon review of the record, the evidence supports the conclusion
that the Agency’s actions in this matter were in response to
Complainant’s own requests in order to accommodate him. While
Complainant may be entitled to an effective reasonable accommodation under
the Rehabilitation Act, he is not entitled to the accommodation of his
choice. Accordingly, we find that the Agency provided Complainant with
a reasonable accommodation even though it was not the exact accommodation
he wanted. Therefore, Complainant may not have agreed with the Agency’s
accommodation, he did not assert that the accommodations were ineffective.
Complainant also asserted that the Agency’s actions constituted
retaliation. 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).
Upon review of the record, we find that the Agency provided legitimate,
nondiscriminatory reasons for its actions. As noted above, Complainant
was reassigned in order to provide him with a reasonable accommodation.
Further, Complainant was asked to remove the face mask based on safety
requirements while working around inmates. He was allowed to keep his
ears covered to protect them from the cold. Complainant has not shown
that the Agency’s reasons were pretext for discrimination based on
unlawful retaliation.
Finally, while Complainant has alleged he was denied the opportunity
to raise his EEO complaint with an EEO counselor on January 24, 2008,
the record shows that he did, in fact, meet with the counselor on that
day. There is no evidence that he was harmed by management’s inability
to allow him to leave his post until later in the day because there was
no one immediately available to relieve him from his post.
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
September 29, 2011
__________________
Date
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0120100440
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100440