0120142805
10-05-2016
Earl F.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Earl F.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120142805
Agency No. NPS110559
DECISION
On July 27, 2014, Complainant filed an appeal from the Agency's July 2, 2014, 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., and 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 decision.
ISSUES PRESENTED
Whether the Agency: (1) discriminated against Complainant based on disability when it allegedly failed to provide him with a reasonable accommodation; (2) discriminated against him based on disability, or in reprisal for protected EEO activity, when he was denied a within grade step increase; he was allegedly "verbally threatened;" he was denied an opportunity to be Acting Chief; his workload was reduced; he was removed from his private office, which was provided as an accommodation; and he was rated fully successful; and (3) discriminated against him based on disability, or in reprisal for protected EEO activity, when it allegedly subjected him to a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contracting Officer at the Agency's Santa Monica Mountains National Recreation Area in Thousand Oaks, California. Complainant started at the Agency in December 2009, and had two supervisors; one was his Administrative Supervisor (S1), and the other his Technical Supervisor (S2).
In March 2010, Complainant signed a telework agreement allowing him to work from home each Thursday for three months. Prior to the expiration, Complainant asked S1 if they could renew the telework agreement; S1 verbally approved Complainant's telework. On July 7, 2010, a Human Resources officer (HRO) emailed Complainant informing him that he was no longer able to telework because his agreement had expired. On July 8, 2010, Complainant met with S1, and allegedly informed her about his Attention Deficit Disorder (ADD).
On September 2, 2010, Complainant was placed on a performance tracking plan to help improve his performance. On November 8, 2010, Complainant received his annual performance appraisal rating him minimally successful. Complainant met with S1 and S2 on a weekly basis, and by April 4, 2011, his performance improved to a fully successful level. Complainant's within-grade step increase became effective on March 28, 2011.
On February 25, 2011, Complainant sent S1 an email requesting a reasonable accommodation. S1 replied on March 11, 2011, requesting clarification of his requested accommodation and supporting medical documentation. After receiving a response on April 5, 2011, S1 granted Complainant a private office on April 13, 2011. The Agency needed to convert a storage room into an office, and in the interim, Complainant was relocated to the library. Coworkers were informed that they were not to use the library during this time. His private office was completed on June 10, 2011.
In September 2011, an accident necessitated an emergency evacuation of the headquarters building. On September 10, 2011, S1 asked Complainant to temporarily work at a different Agency location referred to as Diamond X, while repairs were being made to the headquarters facility. On February 6, 2012, Complainant requested an accommodation to relocate to Diamond X. On March 6, 2012, Complainant and S1 discussed the option for increased telework. On March 20, 2012, S1 followed up with Complainant because she had asked him to submit his request in writing, which he had not done. Complainant responded requesting three telework days.
On March 26, 2012, Complainant sent S1 an email resigning from his position. On March 27, 2012, S1 learned that Complainant had accepted another position outside of the Agency, and was requesting a release date of April 7, 2012. On April 3, 2012, Complainant rescinded his resignation, and declined the other job offer. On June 7, 2012, Complainant's request to work from Diamond X was denied; however, he was granted the ability to work from home two days per week as an accommodation.
On July 28, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (ADD) when:
1. Since July 7, 2010, it denied his request for a reasonable accommodation of telework, a flexible schedule, and a staff assistant.
Complainant also alleged that he was discriminated against on the bases of disability, and in reprisal for filing the instant EEO complaint, and requesting a reasonable accommodation when
2. From January 27, 2011, through May 11, 2011, the Agency denied his within-grade step increase, based on his "minimally successful" performance appraisal, dated November 8, 2010;
3. On May 4, 2011, S1 allegedly verbally threatened him after she became aware that he initiated the instant EEO complaint;
4. On August 22, 2011, he was passed over in the rotation to be the Acting Chief;
5. On November 16, 2011, his work assignments were reduced by 66%;
6. On August 29, 2011, after being provided with a separate working space as an accommodation, he was removed from that space; and
7. On November 14, 2011, he received a Fully Successful performance evaluation.
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. 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.
In regards to Complainant's claim that he was denied a reasonable accommodation, the Agency found that his managers timely responded to his request, and built him a private office. It also provided him adequate office space while his regular office was undergoing renovation. Additionally, Complainant was granted two days of telework as an accommodation.
The Agency found that Complainant had failed to establish a prima facie case of reprisal discrimination because it found that claims 3, through 7 were not adverse actions. It also found that Complainant had not shown a nexus between his protected EEO activity and the adverse action in claim 1 because S1 did not learn of his EEO activity until July 2, 2012, which was after the alleged discriminatory action.
The Agency then assumed, arguendo, that Complainant had established a prima facie case of reprisal discrimination, and found that management officials articulated legitimate, non-discriminatory reasons for their actions. For claim 2, the Agency found that Complainant's managers did not provide him with a within-grade step increase because the Agency's policy states that an employee's rating needs to be no lower than a Fully Successful to obtain the increase. For claim 3, the Agency found that the S1 did not verbally threaten Complainant for engaging in EEO activity because she was not aware of his EEO activity at the time.
For claim 4, Complainant's managers stated that the choice of Acting Chief depended on the needs of the office. In response to claim 5, management officials stated that everyone's workload falls at the start of each fiscal year, and that Complainant's work was assigned based on legitimate considerations. For claim 6, Complainant's managers stated that Complainant was temporarily relocated while the building was undergoing construction, and that the relocation was reasonable and for a limited duration. In regards to claim 7, the Agency found that Complainant received a Fully Successful performance rating as a result of legitimate considerations. The Agency then found that Complainant had not shown that the proffered reasons were pretext for discrimination. Accordingly, the Agency determined that Complainant had now shown that he was discriminated against based on disability, or in reprisal for protected EEO activity, when it allegedly failed to accommodate him; denied his within-grade step increase; S1 allegedly "verbally threatened" him; he was denied the opportunity to be Acting Chief; his workload was reduced; he was removed from his accommodation of a private office; and he received a Fully Successful performance appraisal.
Complainant filed the instant appeal and submitted a brief in support of his appeal on August 27, 2014. The Agency filed an opposition brief on November 3, 2014.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that Agency's final decision must be reversed because it fails to address all of his claims. Specifically, Complainant states that the decision did not address his hostile work environment claim; and that it did not analyze that he alleged reprisal based on his protected activity of requesting a reasonable accommodation.
Complainant alleges that he established a prima facie case of disability discrimination when the Agency failed to accommodate him because the Agency "dragged its feet" in providing an accommodation. Complainant argues that his telework accommodation was taken away from him for sixteen months on July 7, 2010. Complainant also argues that he established a prima case of reprisal discrimination because he received a negative performance evaluation in November 2010, two months after he requested a reasonable accommodation in September 2010.
Complainant argues that it was pretextual to state that people do not have a right to be Acting Chief, after telling him that he would be Acting Chief; and that his office was deemed unsafe, but the Agency allowed the HRO to use that same office.
The Agency argued that the final decision addressed all of the issues, and requested that the Commission affirm its decision finding no discrimination.
STANDARD OF REVIEW
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. (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
As an initial matter, Complainant argues that the Agency's final decision should be vacated because it did not address his hostile work environment claim; and it did not analyze that he alleged reprisal based on his protected activity of requesting a reasonable accommodation. We note that in the December 2, 2011, letter from the Agency regarding the accepted claims, Complainant was informed that any changes should be submitted to the Agency within five calendar days. Complainant responded, and his claims were amended on April 20, 2012. While we find that Complainant's response letter is not contained in the record, the final accepted claims do not include a hostile work environment claim, nor does it include his requesting a reasonable accommodation as part of his basis of reprisal. We find that Complainant had an opportunity to raise these two issues with the Agency, and it is unclear if he did so. However, we find that the record is fully developed on these issues, and we will address them in this decision, as discussed below. Accordingly, we decline to vacate the Agency's final decision.
Failure to Provide Reasonable Accommodation
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. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) he 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. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such impairment. 29 C.F.R. � 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. � 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997).
In regards to claim 1, we find that Complainant has not shown that he was discriminated against based on his disability when the Agency allegedly failed to accommodate him because he was granted an accommodation. On appeal, Complainant argues that there was an undue delay in the granting of his accommodations; however, we do not find an undue delay. While he alleges that he requested an accommodation starting in July 2010, there is no evidence that supports this assertion. S1 stated that she learned of Complainant's condition through "casual conversation" in January 2011, and that she first learned of his request for a reasonable accommodation for his condition when he sent an email on February 22, 2011. The HRO stated that all requests for reasonable accommodation come through her office because she provides assistance in the processing of the requests. She stated that she had no knowledge of Complainant's request until February 2011.
Complainant argues that his requests for telework, a flexible schedule and a staff assistant were denied. However, we note that while the Rehabilitation Act provides that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, Question 9 (rev. Oct. 17, 2002). Based on Complainant's provided medical documentation, the Agency approved, and built him a private office as an accommodation at the headquarter location. To the extent that Complainant alleges that he was discriminated against when he was denied his requested accommodation to work out of the Diamond X location, he had a private office at headquarters, and was granted additional telework. We further find that Complainant has not shown that these were not effective accommodations.
Additionally, the Agency continued to accommodate Complainant throughout the construction of their headquarters building. Due to concerns about the noise, S1 asked if Complainant would be willing to work out of the Diamond X location, to which he agreed. Complainant alleges that the temporary removal of his private office to a shared cubicle was a failure to accommodate. However, we find that Complainant only had to share a cubicle for approximately one week while a private office was being prepared at the Diamond X location. S1 stated that sharing an office with one person at Diamond X would have been better than sharing a conference room with eight other employees at their headquarters building. Once the construction was completed, Complainant returned to his regular private office at headquarters.
We find that Complainant has been accommodated; and has not shown an undue delay in the processing of his requests. Accordingly, we find that the Agency did not discriminate against him based on disability.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant has established a prima facie case of discrimination based on disability, and in reprisal for filing the instant EEO complaint and requesting a reasonable accommodation; we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. For claim 2, the HRO stated that the denial of Complainant's within-grade step increase was a "direct result" of his minimally successful performance rating. S1 stated that Complainant had been rated minimally successful in one of his performance elements. Examples of his work deficiencies include incomplete reports; and not providing complete information to vendors and customers. S2 stated that when Complainant started at the Agency, it was apparent that he did not "have a basic knowledge of contracting in general." S2 stated that Complainant was outpaced by a coworker (C1), who was a trainee, and that Complainant asked her how to complete basic assignments.
For claim 3, S1 denied verbally or physically threatening any employee. In response to claim 4, S1 stated that in August 2011, the Agency was in the midst of a major roof construction project. She stated that she requested another coworker to act because he had the most knowledge about the roof construction project. Another coworker (C2) stated that while S1 sets a schedule for Acting Chief, it is not "set in stone." C2 stated that S1 chooses a "better qualified" person at times, and that there were instances when she was scheduled to act, and another person was selected, and times when she is selected to act when she is not scheduled.
In regards to claim 5, S1 stated that usually, a contract specialist's workload is lighter in October through February in a fiscal year. S2 stated that they wait until they receive information about the new fiscal year budget before starting new projects, and that this is especially true for construction projects. S1 stated that in 2010, due to the American Reinvestment and Recovery Act (ARRA), buying activity was higher than normal. S2 stated that the previous year was the largest year that they had had because of the ARRA; and that construction projects were drying up with the ending of ARRA, and expected budget cuts. S2 also stated that any reduction in Complainant's workload was in line with overall reduction in work that everyone experienced at the time.
For claim 6, S1 stated that due to the renovation at their building, she asked Complainant to temporarily relocate to the Diamond X location because he lived close by. S1 stated that if Complainant had stayed at the headquarters building, he would have been disturbed by the constant drilling and hammering. The HRO stated that she believed that Complainant had volunteered to temporarily relocate to Diamond X because she heard him "brag" about it, and seemed pleased to be going there. She stated that Complainant's temporary move freed up use of his office. For claim 7, S2 stated that it was "obvious that [Complainant] could not do some of the most basic functions of his job," and that he and S1 decided to give him a fully successful rating because he had shown improvement; and they thought the rating would be an encouragement.
We find that Complainant has not shown that the proffered reasons are pretext for discrimination. Complainant can establish pretext in two ways: "(1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer." Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir.2000) (internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05.
On appeal, Complainant argues that stating that people do not have a right to be Acting Chief, after telling him that he would be Acting Chief shows pretext. However, we find that the explanation provided was not internally inconsistent because C2, and other witnesses, provided consistent statements to support S1's explanation. We also find that Complainant has not shown that S1's reason was unworthy of belief; or that S1 was motivated by discrimination.
Additionally, Complainant argues pretext for discrimination because management allowed the HRO to use his office, despite telling him that it was unsafe. However, he has not shown any evidence that he was told that his office was unsafe. The HRO stated that Complainant's office was not directly affected by the construction, but that it was indirectly affected because of the construction noise. S1 stated that she believed that Complainant would have issues due to the noise, and asked if he would be willing to temporarily relocate during the construction. The record contains an email from Complainant to S1 stating that "[w]orking from the private office at [Diamond X] seems to be a better place for helping to minimize distractions." We find it noteworthy that Complainant specifies that his temporary relocation was based on minimizing distractions, and not due to any safety concerns. Again, we find that Complainant has not shown that S1's reason was unworthy of belief; or that S1 was motivated by discrimination.
As such, we find that Complainant has not shown that he was discriminated against based on disability, and in reprisal for filing the instant EEO complaint and requesting a reasonable accommodation, when he was denied a within-grade step increase; S1 allegedly "verbally threatened" him; he was denied an opportunity to be Acting Chief; his workload was reduced; he was removed from his private office, which was provided as an accommodation; and he was rated fully successful.
Harassment
As discussed above, we found that Complainant did not establish a case of discrimination on any of his alleged bases. Further, we conclude that a case of harassment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
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 that Complainant had not shown that he was: (1) discriminated against based on disability when the Agency allegedly failed to provide him with a reasonable accommodation; or (2) discriminated against him based on disability, or in reprisal for protected EEO activity, when he was denied a within-grade step increase; S1 allegedly "verbally threatened" him; he was denied an opportunity to be Acting Chief; his workload was reduced; he was removed from his private office, which was provided as an accommodation; and he was rated fully successful. We also find that Complainant has not shown that he was subjected to hostile work environment based on disability, or in reprisal for protected EEO activity.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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 (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
_10/5/16_________________
Date
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.
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