0120170372
09-06-2018
Emilio K.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emilio K.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120170372
Agency No. DECA002082012
DECISION
On November 1, 2016, 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 September 30, 2016, 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
In the instant appeal, we examine whether the final agency decision (FAD) properly found that Complainant did not establish that he was discriminated against based on race (African American), color (Black), gender (male), disability and reprisal for prior EEO activity when: (1) his worker's compensation claim was not processed; (2) he received a 14-day suspension; (3) management denied his overseas tour extension; and (4) he was charged absent without leave (AWOL). Additionally, the instant appeal examines whether the FAD properly found that Complainant was improperly denied a reasonable accommodation for his "work-related" injury.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Meatcutting Worker at the Agency's Atsugi Air Facility in Japan. The Agency's FAD thoroughly discussed the facts in the record, and the instant decision incorporates them as stated. On August 22, 2012 (and as amended on July 1, 2013), Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of Issues Presented above. After 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. Complainant requested a hearing before an Administrative Judge (AJ). On March 17, 2016 Complainant informed the AJ that he planned to pursue his claim in Federal District Court. On April 11, 2016, the AJ informed Complainant that she was dismissing his request for a hearing and directed the Agency to issue a decision on the merits of the complaint. The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
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
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, Complainant established prima facie cases of discrimination based on race, color, disability and reprisal for engaging in prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for the incidents Complainant cites to establish his claim, and that Complainant did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus.
The record reflects that Complainant's dissatisfaction with the processing of his worker's compensation claim was the result of his failure to submit the appropriate information on a timely basis even after several reminders. Complainant's overseas tour extension was not granted because there was an Agency-wide emphasis on enforcing the five-year limit on overseas tours. Complainant failed to show that any similarly situated employees had their tours extended. With respect to the suspension and the AWOL charge, the record is clear that Complainant had severe attendance problems. Complainant accumulated over 514.5 hours of LWOP and was charged 23.25 hours of AWOL in less than one year. Complainant received repeated warnings and progressively more severe discipline which should have put him on notice that his attendance pattern were unacceptable.
In sum, our review of the record confirms the Agency's assertion that its decisions were based on its determination of how best to effectively manage the workplace and its assessment of Complainant's performance and conduct in the workplace. Nothing in the record demonstrates that the actions were in any way motivated by discriminatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Denial of 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. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, 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.
A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). "[T]he word 'accommodation' ... conveys the need for effectiveness." Id. "An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. See Guidance. A complainant who seeks to hold an agency liable for failing to accommodate a disability need not show that they have suffered an adverse employment action. An agency is required to accommodate an employee's disability whether or not a failure to do so is motivated by discrimination based on that disability.
For purposes of analysis only, we will assume, without so finding, that Complainant is a qualified individual with a disability. Based on the record before us, we do not find that he was denied a reasonable accommodation. Complainant sustained a non-work related injury in March of 2012, and an on-the-job injury in May of 2012. Other than Complainant's testimony that he informed his supervisors of the March 2012 injury, there is no additional information in the record regarding the injury, or any information showing that Complainant requested an accommodation. We concur with the FAD's determination that there is insufficient information in the record regarding this injury to determine whether Complainant should have received a reasonable accommodation with respect to the March 2012 injury. With respect to the May 2012 injury, while management was aware of the injury due to Complainant starting the worker's compensation process, Complainant failed to complete the required paperwork to receive benefits in a timely manner. Although Complainant was provided with a light duty assignment while under medical restrictions related to the injury, without additional information, the need for an accommodation for a disability cannot be assumed. The record indicates that the Agency was willing to engage in the interactive process to accommodate Complainant, however, Complainant did not follow through. Complainant's duties were already reduced in accordance with his medical restrictions in the form of a light duty assignment. Accordingly, we find that Complainant did not establish that he was denied a reasonable accommodation because he failed to properly engage in the interactive process with appropriate Agency personnel.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, 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 (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
__9/6/18________________
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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