0120073873
09-18-2009
Debra Finley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Debra Finley,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073873
Hearing No. 430-2007-00124X
Agency No. 2004-0637-2006101730
DECISION
On September 7, 2007, complainant filed an appeal from the agency's August
7, 2007 final order concerning her 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the
appeal, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission affirms the agency's final order.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Health Technician for Food Nutrition Services, GS-4, at the
agency's Medical Center in Asheville, North Carolina. The medical
center's parking facilities included spaces for the disabled.1
Some spaces, such as those immediately behind the facility, were
specifically designated as "wheelchair operator" spaces. Complainant,
who had a disabled parking decal but did not use a wheelchair or drive
a wheelchair-accessible vehicle, occasionally parked her vehicle in the
"wheelchair operator" spaces close to the facility.
A June 16, 2005 agency memorandum titled "Parking and Vehicle Control"
provides that the police of the medical center issue notices for
violations of parking, and further provides that flagrant or recurring
violations may result in the issuance of a U.S. District Court Violation
Notice. The memorandum also provides that two courtesy violation notices
and one written counseling will usually be given prior to the issuance
of a U.S. District Court Violation Notice to employees.
During January 2006, the facility's police services issued to complainant
several courtesy violation notices for parking in spaces designated only
for wheelchair or wheelchair-accessible vehicles. Police services issued
a notice about counseling to complainant's supervisor, who counseled
complainant verbally and in writing that she should park in regular spaces
for disabled employees instead of in wheelchair-only parking spaces.
On February 16, 2006, complainant requested a parking space close to
the facility as a reasonable accommodation for chest pain, back pain,
hurt knees, and shortness of breath from "walking a distance" from her
parked vehicle to the facility. Complainant's request was forwarded to
the agency's Reasonable Accommodation Committee. On February 24, 2006,
the Reasonable Accommodation Committee notified complainant that she had
provided insufficient information to determine whether she was a qualified
individual with a disability, and requested additional information, such
as a detailed description of complainant's exact medical conditions and
clinical findings.
In March 2006, complainant received a U.S. District Court Violation
Notice for parking in a wheelchair-accessible vehicle parking space, and
was fined $50.00. However, due to the attempts of the U.S. Attorney's
Office to reduce the number of referrals of minor offenses, police
services subsequently recalled the U.S. District Court Violation Notice,
and issued a courtesy violation notice instead. Complainant never paid
the $50.00 fine.
On April 3, 2006, the Reasonable Accommodation Committee denied
complainant's reasonable accommodation request because complainant failed
to provide sufficient medical documentation of her condition.
On May 1, 2006, complainant filed an EEO complaint alleging that she
was subjected to harassment on the bases of race (African-American)
and disability (sarcoid2 and diabetes) when:
1. on March 16, 2006, complainant received a letter of counseling
for parking violations; and
2. on March 20, 2006, complainant received a $50.00 parking ticket
for parking in a wheelchair-accessible vehicle parking space.
In addition, complainant alleged that she was discriminated against on the
bases of race (African-American) and disability (sarcoid and diabetes)
when, on April 3, 2006, the agency denied complainant's request for a
reasonable accommodation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over the complainant's objections, the AJ assigned
to the case granted the agency's May 23, 2007 motion for a decision
without a hearing and issued a decision without a hearing, in favor of
the agency, on July 18, 2007. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred in issuing a decision
without a hearing because (1) the agency harassed complainant by ticketing
and counseling her for parking in "wheelchair operator" spaces when
no other spaces for the disabled were available; (2) the agency failed
to engage in a meaningful discussion or make a specific inquiry about
complainant's medical condition after complainant requested a reasonable
accommodation.
ANALYSIS AND FINDINGS
In rendering this appellate decision, the Commission reviews de novo the
AJ's legal and factual conclusions, and the agency's final order adopting
them. 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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999) (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will
be reviewed de novo"). The Commission is free to accept (if accurate)
or reject (if erroneous) the factual conclusions and legal analysis of
the AJ and agency. 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").
The Commission must first determine whether the AJ appropriately
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when the
AJ 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. Department of Defense, 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).
Here, we find that the AJ correctly determined that no genuine issue of
material fact exists which would warrant a hearing.
A. Harassment Claim
In her brief on appeal, complainant contends that she was subjected to
discriminatory harassment when the agency formally counseled complainant
and issued a parking ticket and a $50.00 fine for parking in "wheelchair
operator" spaces when complainant had nowhere else to park and complainant
could not walk great distances. In her affidavit, complainant maintained
that the multiple notices from the police service, supervisor counseling,
and parking ticket constituted discriminatory harassment because other
drivers, who did not use wheelchairs but nevertheless parked in the
wheelchair operator spaces, were never given multiple notices, formal
counseling, or parking tickets by the police service.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will 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
[and the Rehabilitation Act] must be determined by looking at all 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, 510 U.S. 17
(1993).
The AJ found that complainant failed to demonstrate that she was
subjected to harassment that was sufficiently severe or pervasive so as
to constitute discriminatory harassment. After reviewing the entire
record, the Commission finds that the AJ did not err in determining
that complainant failed to prove that the agency's actions constituted
harassment. Complainant acknowledged in her affidavit that the signs
for the parking spaces at issue indicated they were only for wheelchair
drivers and drivers of wheelchair-accessible vans. The record shows
that the multiple courtesy violation notices, supervisory counseling,
and parking ticket with a $50.00 fine were consistent with the agency's
procedures in the "Parking and Vehicle Control" memorandum. Therefore,
the Commission finds that the agency's actions were not sufficiently
severe or pervasive to constitute discriminatory harassment under
Title VII or the Rehabilitation Act. Further, we note, as did the AJ,
that complainant offered no evidence, beyond her bare assertion, that
employees outside of her protected groups were treated more favorably
with regard to ticketing for parking improperly.
B. Reasonable Accommodation Claim
On appeal, complainant contends that the AJ erred in issuing a decision
without a hearing because the agency failed to engage in a meaningful
discussion or effort to obtain more information about her disability.
Specifically, complainant argues that the agency made no specific inquiry
about any aspect of complainant's condition or limitations.
When a complainant requests a reasonable accommodation3, an agency cannot
ask for documentation when: (1) the individual's disability and the need
for reasonable accommodation are both obvious, or (2) the individual has
already provided the agency with sufficient information to substantiate
that she has a disability under the Rehabilitation Act and needs the
reasonable accommodation requested. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, Notice No. 915.002, 16 (October 17, 2002). However,
an agency may ask an individual for reasonable documentation about her
disability and functional limitations when the disability or the need
for accommodation is not obvious. Id. at 12-13.
Reasonable documentation means that the agency may require only the
documentation that is needed to establish that a person has a disability
under the Rehabilitation Act, and that the disability necessitates a
reasonable accommodation. Id. at 13. In requesting documentation, an
agency should specify what types of information it is seeking regarding
the disability, its functional limitations, and the need for reasonable
accommodation. Id. at 14. If an individual's disability or need for
reasonable accommodation is not obvious, and she refuses to provide
the reasonable documentation requested by the agency, then she is not
entitled to reasonable accommodation. Id. at 15.
In her written request for a reasonable accommodation, complainant
informed the agency that the reason for her request was because of
"chest pains when walking a distance, back pain, shortness of breath,
knees hurt." The record also includes a two-sentence letter from
complainant's physician, who wrote: "Due to my patient's medical
condition, she needs to park close to the building. [Complainant] does
contain [sic] a handicapped [sic] placard."
The agency subsequently determined that complainant failed to provide
sufficient documentation demonstrating a need for an accommodation.
The agency requested additional information, including a detailed
description of complainant's exact medical conditions and medical bases
for such findings, clinical findings, findings of physical examination,
prognosis, an explanation of the impact of the stated medical condition
on overall health and activities, and a detailed description of the
precise accommodation recommended by complainant's health care provider.
We note that the AJ specifically found that the agency provided
complainant with a written request for the foregoing information.
We find complainant's contention on appeal that the agency made no such
inquiry to be unfounded.
The Commission finds that the AJ did not err in finding that complainant
failed to show that the agency discriminated against her when it rejected
her request for reasonable accommodation. The record shows that the
agency initially asked complainant for reasonable documentation because
complainant did not provide the agency with sufficient information in her
written request or doctor's note to substantiate that she had a disability
under the Rehabilitation Act. For example, neither the doctor's letter
nor complainant's reasonable accommodation request indicated that her
disability was based on sarcoid or diabetes. In addition, complainant's
documents did not specify the distance that complainant could walk from
her parked vehicle to the facility that would spare complainant from
the alleged physical ailments.
The record does not show that complainant provided additional
documentation containing the detailed information requested by the
agency.4 Because complainant's disability or need for reasonable
accommodation was not obvious from her written request and doctor's notes,
and because she refused to provide the reasonable documentation requested
by the agency, the Commission finds that the agency was not obliged to
provide her with the requested accommodation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission affirms
the agency's final decision, finding that complainant failed to show
that she was discriminated against as alleged.
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 18, 2009
Date
1 We note that, in the record below, these spaces are referred to as
"handicap spaces" or "handicap parking." Both the Americans with
Disabilities Act and the Rehabilitation Act eschew the term "handicap"
in favor of "disability." The Commission's regulations follow the
language of these statutes. See 29 C.F.R. �� 1614.203(b); 1630.2(g).
2 Although this condition is referred to throughout the record as
"sarcoid," upon review it appears that the condition is properly known as
"sarcoidosis," a disease of unknown cause in which inflammation occurs in
the lymph nodes, lungs, liver, eyes, skin, or other tissues. The symptoms
of sarcoidosis may include fatigue and shortness of breath. See, e.g.,
https://www.google.com/health/ref/Sarcoidosis.
3 For purposes of our analysis, we assume, without so finding, that
complainant is an individual with a disability within the meaning of
the Rehabilitation Act. See 29 C.F.R. �1630.2(g).
4 In her appellate brief, complainant generally maintains that her
doctor's notes indicated that her conditions made it necessary for her
to park closer to her work and avoid long and exhausting walks from
wherever she could find parking.
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0120073873
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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