0120064458
09-19-2007
Edward Ka'Anoi, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Edward Ka'Anoi,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 0120064458
Hearing No. 550-06-00081X
Agency No. JH-05-001
DECISION1
On July 25, 2006, complainant filed an appeal from the agency's June
30, 2006, final order 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. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission affirms the agency's final order.
During the relevant time, complainant worked as a materials handler
(examiner and identifier) at the agency's Re-utilization and Marketing
Office industrial yard located at Travis Air Force Base, California.
On March 13, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of national origin (Hawaiian)
and disability (spinal injury), when:
a. On September 21, 2004, he was denied light duty by his
supervisor based on his spinal injury;
b. On October 12, 2004, his supervisor asked for information about
his on-the-job injury;
c. On October 18, 2004, his supervisor called his home and threatened
him with AWOL (absent without leave) if he did not send in a doctor's
statement allowing him to stay home;
d. On October 20, 2004, he was verbally attacked by his supervisor
about why he did not use his private medical insurance after he had an
on-the-job injury;
e. On October 26, 2004, the supervisor sent him an email which
mocked his spinal injury;
f. On December 22, 2004, he received a harassing letter from his
supervisor threatening to deny his absences, put him on AWOL, and subject
him to disciplinary action;
g. On February 13, 2005, he received a letter from Worker's
Compensation to return to work at Travis Air Force Base on February 17,
2005;
h. On February 17, 2005, when he returned to work, he was put under
a set of rules which he considered to be house arrest;
i. On February 24, 2005, his supervisor denied his leave request
when his stepfather-in-law passed away, and when he returned to work on
March 4, 2005, he was charged with AWOL, his pay was deducted, and he
was issued a formal reprimand; and
j. On October 4, 2005, he asked a co-worker and his supervisor
to escort him into the yard to take pictures for a customer, but they
refused.
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). Complainant timely
requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing, and over the complainant's
objections, issued a decision without a hearing on May 30, 2006.
The AJ made the following findings of fact: Complainant injured his back
while working in July 2004. Thereafter, he provided medical documentation
from his physician stating that he could not operate a forklift for
more than one hour at a time. Beginning in October 2004, the agency
authorized him to take extended sick leave to recover from stress and
depression pursuant to the request of his physician. He later provided
medical documentation related to his back condition. His supervisor
(S-1) later discovered that complainant was "publicly performing his
avocation involving entertainment activities." He therefore sent
complainant a letter advising him that he may be abusing sick leave
privileges, and requiring him to submit additional medical explanation
to support his sick leave status or risk being charged with abuse of
leave and being placed on AWOL. After receiving additional medical
documentation, including a medical report indicating that complainant
required vocational rehabilitation services and a different job position
to accommodate his back condition, the agency provided complainant with
a desk job to accommodate his increased limitations.
Based upon the aforesaid findings, the AJ determined that, even assuming
that complainant was disabled as defined by the Rehabilitation Act, the
agency provided him with a reasonable accommodation in the form of the
desk job. The AJ noted that the agency's act of requiring complainant
to avoid the industrial yard was not unreasonable. The AJ further found
that complainant's other claims did not render him aggrieved, but that
even if they did, complainant failed to show that he was treated less
favorably than similarly situated employees not in his protected classes.
He determined that management articulated legitimate nondiscriminatory
reasons for its actions, and complainant failed to show that those reasons
were pretextual. Finally, he found that complainant failed to show that
he was subjected to a hostile work environment.
The agency subsequently issued a final order adopting the AJ's
finding that complainant failed to prove that he was subjected to
discrimination as alleged. Complainant thereafter filed the present
appeal. He identifies facts in dispute which he believes to be material.
For example, although the AJ accepted S-1's statement that complainant's
restrictions included not operating a forklift for more than an hour,
complainant identifies his restrictions as no twisting, climbing,
squatting, or kneeling, as well as no bouncing and jarring.
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. 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").
We must first 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that the AJ's
decision referenced the appropriate regulations, policies, and laws.
Moreover, we find that the AJ properly issued a decision without a hearing
because complainant has failed to show that a genuine issue of material
fact exists. First, the record reveals that the agency appropriately
provided complainant with the reasonable accommodation of a desk job.2
Moreover, although complainant maintains that his restrictions did not
include an inability to operate a forklift for more than an hour, the
record reveals that his restrictions of no twisting, climbing, bouncing,
or jarring are precisely the types of activities involved in operating
a forklift. Second, inasmuch as complainant was on leave due to an
injury or requesting an accommodation, the agency may ask an employee for
reasonable documentation about his disability and functional limitations
when the disability and/or the need for accommodation is not obvious. See
EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, Notice No. 915.002 (amended
October 17, 2002), question 6. Therefore, the agency acted consisted
with Commission guidance in requesting documentation from complainant.
Third, the agency provided legitimate nondiscriminatory reasons for
its actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
For example, when complainant's stepfather-in-law passed away (Claim
i), S-1 explained that he provided complainant with two days of leave,
combined with a two day weekend. He further directed complainant to
contact him if he needed more leave, but complainant failed to do so.
Also, when complainant returned to work with restrictions, the agency
required complainant to avoid the industrial yard for his safety
(Claim h). Finally, to the extent that complainant asserted that he was
subjected to a hostile work environment, the record reveals that the
agency's actions were insufficiently severe or pervasive to establish
such a claim, or that the agency's actions were motivated by complainant's
national origin or disability. McCleod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999). For the foregoing reason,
we concur with the AJ's determination and find that a decision without
a hearing was appropriately rendered in the subject case.
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 order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
___9/19/07_______________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 We assume without finding, for the purposes of analysis only, that
complainant is an individual with a disability as alleged.
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0120064458
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064458