0120160566
05-10-2018
Emery F.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emery F.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120160566
Agency No. FS-2014-00490
DECISION
On December 10, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 10, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Engineer Equipment Operator, WG-5179-08 at the Agency's Savannah River facility in New Ellenton, South Carolina.
On July 23, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of race (African-American) and disability (diabetes) when:
1. On April 28, 2014, his performance elements were modified during his midyear performance evaluation;
2. From March 12, 2014 to April 23, 2014, management questioned, criticized, delayed and impeded his use of a reasonable accommodation; and
3. On unspecified dates between February 24, 2014, to April 24, 2014, he was required to complete a project outside of his job description without assistance from other employees.
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 (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.
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. (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").
Reasonable Accommodation
Complainant alleged discrimination when he brought in a note from his physician requesting that he be allowed to return to a work facility in order to warm up his food in a microwave and eat his meal in that location. In the first note (Note 1), the Physician stated, "Please allow [Complainant] to heat his lunch. Due to health conditions, he needs to eat a well balanced meal vs eating on the go and making choices." The Agency found that Note 1 was insufficient. In response, Complainant provided a second medical note (Note 2) from the Physician stating, "[Complainant] needs to be able to eat a well balanced meal due to fluctuating glucose levels. [Complainant] should be allowed to heat his meal at lunch if needed."
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).
The Assistant Manager (Native American/White, no disability) averred that Complainant submitted the request which consisted of Note 1 followed by Note 2. He granted Complainant's request to use a government vehicle to travel to the nearest microwave to heat his lunch. The Civil Engineer Technician (Technician, White and no disability) supported the Assistant Manager's account that management provided Complainant with his requested accommodation. The record indicated that there was some discussion by management whether they had the authority to approve Complainant's request for it contradicted Agency policy. However, management approved Complainant's request for reasonable accommodation request. Furthermore, Complainant has not shown that the Agency has prevented him from using his reasonable accommodation. Therefore, we conclude that Complainant has not shown that the Agency violated the Rehabilitation Act.
Disparate Treatment
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).
Regarding claim (1), the Assistant Manager averred that the Agency facility sustained an ice storm in February and Complainant's performance elements were modified to reflect a change in the mission of the office. The Assistant Manager indicated that the facility's entire road system was closed due to down trees and mowing. The Assistant Manager had to change Complainant's performance elements in order to achieve the needs and operation of the facility. In addition, he also made changes to his original performance requirements for they were unachievable because of the ice storm. In sum, the Assistant Manager asserted that Complainant's performance elements needed to be modified following the ice storm. The Technician also averred that the modifications occurred based on a shift in the facility's priority after the ice storm. As to claim (3), the Assistant Manager denied that Complainant was required to complete a project outside of his job description. He argued that Complainant had to utilize a skid steer loader to gather ice and debris at the mixed waste project, load them in a hydraulic dump trailer pulled by a wheel tractor, and dump the ice and debris in a designated area. The Assistant Manager noted that Complainant had performed this function previously and that the assignment was within his duties as an Engineering Equipment Operator. Further, he did not recall Complainant requesting assistance. The Technician averred that Complainant asked him for assistance but he did not believe that Complainant should receive any assistance from other units. Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions.
We turn to Complainant to establish that the Agency's reasons were pretext for discrimination. Complainant asserted that he did not get credit for work he had completed. In addition, Complainant challenged the Assistant Manager's claim that he had worked had prior experience on the skid steer loader. However, upon review of the record, we find that Complainant provided no evidence to establish that he was subjected to disparate treatment. Therefore, we conclude that the Complainant has not shown that he was subjected to discrimination based on his race and/or disability with respect to claims (1) and (3).
Harassment
In his harassment claim, Complainant alleged that the events listed above constituted harassment. In addition, Complainant claimed that management had conversations regarding his reasonable accommodation request. A coworker averred that she heard in a staff meeting that two of the managers commented about Complainant's request for a reasonable accommodation. In addition, during the processing of Complainant's reasonable accommodation request, management expressed concern that Complainant could be subjected to disciplinary action for driving a government vehicle to go to lunch. However, management decided to grant Complainant's reasonable accommodation request. Furthermore, Complainant has not asserted that he has been disciplined for the use of the government vehicle as part of his reasonable accommodation request.
To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, age and/or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, as already concluded above, there is no evidence to support a finding that Complainant's race and/or disability played any role whatsoever in the decisions regarding Complainant's assignment or his request for a reasonable accommodation. Moreover, the responsible management officials provided legitimate, non-discriminatory explanations for the events alleged and provided him with the reasonable accommodation he requested. In sum, Complainant failed to prove that his race and/or disability played any role in the incidents s/he proffered as evidence of his harassment claim.
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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
May 10, 2018
__________________
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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