0120090412
02-25-2009
Fletcher Johnston, Complainant, v. G. Wayne Clough, Secretary, Smithsonian Institution, Agency.
Fletcher Johnston,
Complainant,
v.
G. Wayne Clough,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 0120090412
Hearing No. 570-2008-00120X
Agency No. 07-08-060807
DECISION
On October 23, 2008, complainant filed an appeal from the agency's
September 23, 2008 final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
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 order.
At the time of events giving rise to this complaint, complainant worked
as a Museum Building Manager, GS-1101-13, at the agency's work facility
in Washington, D.C.
On June 8, 2007, complainant filed an EEO complaint claiming that he
was discriminated against on the bases of disability (perceived) and in
reprisal for prior protected EEO activity under the Rehabilitation Act
when:
1. On February 2, 2007, complainant received a request for medical
information.
2. On April 10, 2007, complainant received a decision to suspend him
work and pay for ten calendar days effective April 29, 2007.1
.
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. Over complainant's objections, the AJ assigned to
the case granted the agency's Motion for Summary Judgment and issued a
decision without a hearing on September 22, 2008.
The AJ noted in her decision that complainant had been scheduled
to conduct a safety inspection on January 29 and 30, 2007, of the
Smithsonian Castle along with the Zone Manager and inspectors for the
periodic Management Evaluation & Technical Review. Complainant was
also scheduled to attend a walk-through inspection of the Arts and
Industries Building on January 31, 2007. Complainant was unable to
participate fully in the inspections on January 29 and 31, 2007, and did
not participate at all on January 30, 2007, as he did not report to work
that day due to illness. The Zone Manager subsequently requested that
complainant submit medical information concerning any condition that
might affect his ability to perform his position. Complainant objected
to the request. On February 21, 2007, complainant was issued a Proposal
to Suspend Complainant for 14 days based on several acts of misconduct.
Complainant was cited for not responding to the Zone Manager with a
list of what measures were taken to minimize potential safety findings.
The Zone Manager also mentioned that complainant had failed to address
safety issues that he had referenced in an e-mail. Complainant was
cited for not responding to the Zone Manager's instructions to carry out
assignments relating to the adequate marking of all available exits in
the recently closed Arts and Industries Building. In another instance,
complainant was cited for not informing the Zone Manager as to his plans
to fix two emergency exit windows that had been brought to his attention.
The Zone Manager also mentioned that complainant disregarded his clear
instructions to contact an event coordinator responsible for an event
where unsanitary and unsightly piles of garbage had accumulated. Finally,
complainant was cited for being inaccurate and unaware with regard to
details of a project where he was the point of contact. Complainant
was informed by the Zone Manager that in proposing this suspension, he
found complainant's failure to follow instructions and non-cooperative
attitude became counterproductive, and that it undermined the ability
of the unit to accomplish its mission. The agency subsequently reduced
the suspension from 14 days to 10 days.
With regard to the request for medical information, the AJ found that the
inquiry into complainant's medical condition was permissible because it
was related to complainant's ability to perform his job duties. The AJ
noted that complainant had made such statements as "that inspection really
did me in" and "I'm a disabled veteran and people seem to forget that."
The AJ further noted that complainant did not dispute telling the Zone
Manager that he may not be able to keep up on the walk-through inspection
scheduled for January 31, 2007. The AJ indicated that complainant's
attorney wrote in a letter to the agency that complainant's condition
severely limited his physical mobility. The AJ stated that an essential
part of complainant's position includes extensive walking and climbing.
With regard to the decision to suspend complainant, the AJ found that
the suspension was not based on the perception that complainant is
disabled. The AJ noted that the agency's decision to suspend focused
on complainant's misconduct when he failed to follow the Zone Manager's
instructions and to keep him apprised of complainant's progress on
specific projects. Additionally, the AJ recognized that the proposal
to suspend was based in part on a previous reprimand of complainant
for misconduct and his failure to follow instructions. The AJ further
observed that the Zone Manager's comments on complainant's performance
evaluation stated that complainant needed to improve his follow-up on
specific projects for which he is responsible. As for complainant's
claim of reprisal, the AJ found that complainant established an inference
of reprisal due to the close proximity between his attorney's letter
objecting to the Zone Manager's request for medical information and
the issuance of a proposal to suspend complainant. However, the AJ
found that complainant failed to refute adequately the Zone Manager's
explanation for issuing the suspension.
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.
On appeal, complainant contends that the AJ failed to take into account
that the request for medical information was the predicate for imposing
discipline, as well as the strong inference of retaliation drawn from
the eight days that passed in between complainant's protected activity
to the agency's proposal to suspend. Complainant argues that the
AJ did not factor his fully successful performance appraisal, which
indicated that the agency's legitimate business reason was nothing more
than pretext. Complainant notes that the agency was aware that he was
classified as a disabled veteran with a 30% service-connected disability.
Complainant argues that a request for medical information was issued as
an initial basis of discipline and that he perceived it as a fitness for
duty examination. According to complainant, both the proposal to suspend
and the suspension decision rely on events that allegedly occurred on
January 18, January 23, January 26, January 31, 2007, along with dates
in February 2007. Complainant maintains that these January incidents
form the basis for the discipline, therefore they must be understood as
pretext, because the agency rated him as fully successful on February 1,
2007.
In response, the agency asserts that complainant suffered no adverse
consequence as a result of the request for medical information. The
agency notes that compliance with the request was voluntary. The agency
maintains that the request for medical information was both job-related
and consistent with business necessity. As to the suspension, the agency
states that there is no relevance for complainant's fully successful
rating as it related to a prior reporting period - January 1, 2006 to
December 31, 2006. Thus, the agency argues that the performance rating
did not encompass the time period of the alleged misconduct (January -
February 2007). The agency notes that several of the deficiencies cited
in the performance appraisal were repeated in separate incidents during
the relevant period. Finally, the agency states that complainant has
not disputed that any of these instances of misconduct occurred.
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).
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).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally 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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Upon review, we find the AJ properly issued summary judgment as there are
no genuine issues of material fact in dispute. We shall assume, arguendo,
that complainant established a prima facie case of discrimination on the
alleged bases with regard to the request for medical information and
the suspension.2 With regard to the request for medical information,
we find the agency articulated legitimate, nondiscriminatory reasons
for the request. The agency stated that the request was made with
regard to any condition that might affect complainant's ability to
perform his position. The agency noted complainant's difficulties
in completing the safety inspection tours in the period preceding the
request for medical information. As for the suspension, we also find
that the agency articulated legitimate, nondiscriminatory reasons for
its issuance. The agency cited several instances of misconduct on the
part of complainant where he failed to follow instructions, did not
complete an assignment, or otherwise was uncooperative.
Upon review of the contentions submitted by complainant with regard to
establishing pretext, we find that complainant has failed to establish
that the reasons articulated by the agency were pretext intended to
mask discriminatory intent. With regard to the suspension, complainant
has also not refuted the significant number of instances of lack of
cooperation and deficiencies cited by the Zone Manager. Accordingly,
we find that complainant was not discriminated against on the bases of
either disability or reprisal with regard to each claim.
The agency's determination in its final action that no discrimination
occurred is AFFIRMED.
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
February 25, 2009
__________________
Date
1 The basis of reprisal only applies to the second claim.
2 We do not address whether complainant was an individual with a
disability.
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0120090412
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090412