0120091931
09-01-2009
David Freeman, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
David Freeman,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091931
Agency No. 200J-0655-2008100712
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 27, 2009 final decision concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Material Handler, WG-6907-5, at the agency's VA Medical Center in Saginaw, Michigan.
On March 1, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of race (African-American), disability (spinal cord compression and ataxia), and age (51) when:
1. on November 14, 2007, management officials threatened to terminate his employment or force his retirement while he was waiting for a decision on his worker's compensation claim; and
2. between July 31, 2007 and November 14, 2007, management officials failed to provide reasonable accommodation for his medical condition. Specifically, complainant alleged that:
a. on July 31, 2007, management officials failed to timely process or respond to his request for reasonable accommodation, in violation of Medical Center Memorandum 002-06, Reasonable Accommodation for Employees and Applicants for Disabilities, Section 12;
b. on November 14, 2007, management officials failed to acknowledge his request of July 31, 2007 for reassignment to another position; and
c. on November 14, 2007, management officials denied his request for reasonable accommodation.
The record reflects that around March 1, 2007, complainant suffered an on-the-job injury. The record further reflects that around the end of May 2007, complainant went to the hospital and had emergency anterior cervical fusion surgery on June 2, 2007. According to his physician, complainant has the following medical conditions: (1) C3-C4 spinal cord compression status post surgery; (2) ataxia due to cervical spinal cord compression; (3) non-insulin-dependent diabetes mellitus; (4) chronic diabetic neuropathy; and (5) hypertension. The record reflects that due to his spinal condition, complainant cannot lift more than five pounds. Furthermore, complainant's physician stated that he expects complainant's condition to continue indefinitely.
At the conclusion of the investigation, complainant was provided 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 on February 27, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its February 27, 2009 final decision, the agency found no discrimination. With respect to claim 1, the agency found that complainant did not establish a prima facie case of race, disability, and age discrimination.1 The agency further found that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
The agency also determined that complainant had raised a claim of harassment. Regarding a harassment claim, the agency found that the evidence in the record did not establish that complainant was subjected to harassment based on race, disability and age. Specifically, the agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
With respect to claim 2, the agency concluded that complainant has not provided any persuasive argument regarding his allegation that management failed to provide him with a reasonable accommodation. The agency determined that management was involved in the interactive accommodation process despite its perception that complainant could not work.
Regarding claim 1, the Human Resources Specialist (H1) denied complainant's allegation that management threatened to terminate his employment or force his retirement while he was waiting for a decision on his workers' compensation claim. H1 stated that at the time complainant submitted his request for reasonable accommodation, he also filed a workers' compensation claim. H1 stated "I was just totally confused as to why he filed for them." H1 further stated that complainant informed her that he was going to withdraw his reasonable accommodation request and "then I found out he hadn't. He had already told me he applied for disability retirement, but then I found out he hadn't." H1 stated that because complainant filed a workers' compensation claim, she turned his case over to the OWCP.
The Acting Chief (AC) stated that he had no knowledge in regard to complainant's allegation that management officials threatened to terminate his employment or force his retirement while he was waiting for a decision on his worker's compensation claim.
Regarding claim 2, the Medical Center Director (D1) stated that during the relevant time "we conducted an in-depth review about [Complainant's] request for reassignment as a reasonable accommodation due to a work-related injury...we did, in fact, find out that he requested a reassignment as reasonable accommodation from his supervisor on June 29, 2007, and again on July 31st, 2007. At the time of the request [Complainant] was still out on medical leave under the Family Leave Act, FMLA, due to a recent surgery." D1 stated that based on the documentation from his physician on August 6, 2007, complainant was unable to return to work. D1 further stated that on September 6, 2007, the agency received a document form complainant's physician indicating that complainant "was still not able to ambulate and was high risk for a fall." D1 stated that based on a review of the September 6, 2007 documentation, "it was determined that the request for reasonable accommodation would be denied on [Complainant's] current position and his inability to perform the essential functions of the job with or without any accommodation."
D1 stated that on November 9, 2007, complainant received notification of the denial of his request "along with a number of options available for reassignment to other positions within the VA at our facility, at other facilities or in geographic, other geographic location in the VA." D1 stated that the instant case "became very complicated when [Complainant] also filed a notice of occupational illness with the Department of Labor, an OWCP claim." D1 noted that complainant met with Human Resources concerning his options as outlined in the November 9, 2007 letter "but since the filing of the OWCP claim, it was perceived that he would pursue that avenue, and so we halted our actions on accommodation until we found out the outcome of the OWCP claim."
Further, D1 stated that during the relevant time, management attempted to contact complainant on several occasions concerning a Human Resources position "that had become available and - - but he did not respond to the message. You know, we were trying hard to work with him and trying to get him reassigned to another area and try to do it timely. But it was due to the fact that we needed medical documentation in order to process his request. So the outcome that we have no is that we have attempted to remedy the situation by offering [Complainant] the option to come back to light-duty position pending the outcome of his claim, and restoration of all leave used and lost wages. [Complainant] has accepted the light-duty position so far, but he still has his EEO case pending."
H1 stated that management followed the procedures in the Medical Center Memorandum that was given to them to follow. H1 further stated that during the relevant time, complainant's supervisor "was new at the procedures and all that was that they had to follow. So that's one reason why it taken so long."
AC stated that at the time complainant submitted his request for reasonable accommodation "he had not been cleared and had never given us a back-to-work slip where he could go back to work in any capacity...I had to turn them over to the EEO officer, but his medical records from his doctor said he couldn't work." AC stated that he did not receive any documentation from complainant's doctor indicating that complainant could come back to work. AC further stated that at that time "the EEO person we were switching from one to another. We have a Medical Center Memorandum that was different from the new one that was being renewed at the time, and quite honestly, [Complainant] told me that he was retiring and this was just one of the processes he had to go through. The paperwork was done and it was on the new EEO or, excuse me, the acting EEO's office and that's the only reason that he never got responded to quickly."
AC stated that that management failed to acknowledge complainant's July 31, 2007 request "because on 8/3, he submitted an OWCP claim. It said that it went from non job-related injury to a job-related injury. I kind of thought once you - - once he did that, we were all done with the job related or the reasonable accommodation thing." AC stated that complainant was accommodated according to the OWCP. Specifically, AC stated that he was instructed to find a light-duty position for complainant "so I found a sit-down job where he does ordering and sits at a desk all day."
On appeal, complainant restates his argument that the agency failed to process timely his request for reasonable accommodation. Complainant further argues that his privacy was violated when his supervisor was given a copy of the medical records he provided in support of his worker's compensation claim.
In response, the agency states that complainant is raising his allegation that his privacy was violated when his supervisor was given a copy of the medical records he provided in support of his worker's compensation claim for the first time on appeal. There is no evidence in the record to show that complainant raised this allegation in the instant complaint.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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).
In the instant case, we find that the incidents complained of, even if true, do not rise to the level of a hostile work environment.
Further, to the extent that complainant is alleging that the agency failed to process timely his request for reasonable accommodation, we note that 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), 1630.2(p). Here, we find a review of the record shows that the agency made a diligent effort to accommodate complainant's disability and that there were valid reasons for the delays. Therefore, we concur with the agency's finding that complainant failed to show that agency violated the Rehabilitation Act.
In summary, the Commission determines that on appeal, complainant has not identified any persuasive arguments relating to the agency's articulated non-discriminatory reason for its actions, or to the agency's determination that complainant has not established pretext. Accordingly, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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 1, 2009
__________________
Date
1 For purposes of its review, the Commission has assumed, without deciding, that complainant is an individual with a disability within the meaning of the Rehabilitation Act.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
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