0120171677
09-14-2018
Foster G.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Foster G.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(National Cemetery Administration),
Agency.
Appeal No. 0120171677
Hearing Nos. 570-2016-00791X, 570-2016-01285X
Agency Nos. 20DR-0040-201500374, 2004-0040-2015105423
DECISION
Complainant timely 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 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended. 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued summary judgment in this case; (2) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask unlawful discrimination; and (3) whether Complainant established that he was denied reasonable accommodation for his disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a National Program Manager, GS-14, at the Agency's National Cemetery Administration in Washington, D.C. Report of Investigation for Agency No. 20DR-0040-201500374 (ROI 1), at 16. On June 20, 2014, Complainant attended a farewell ceremony for a senior employee of the Agency and was standing in a receiving line behind the Executive Director (female). Id. at 80. While standing in the line, Complainant reportedly began complimenting the Executive Director on her appearance and continued doing so even after the Executive Director allegedly said to stop. Id. According to the Executive Director, Complainant at one point said to her, "We're lucky we're at work," and she felt so uncomfortable by Complainant's comments that she got out of line. Id. Another coworker (female), who was also in the line, observed that Complainant continued to compliment the Executive Director on her appearance in a way that made them both feel uncomfortable. Id. at 93. Complainant did not deny that he said to the Executive Director that she looked nice in her outfit, but felt that the Executive Director did not appear to be bothered by his remarks. Id. at 75-76. Thereafter, on October 7, 2014, Complainant was issued a Letter of Admonishment from his first-level supervisor (S1). Id. at 87. Therein, Complainant was charged with inappropriate conduct for his remarks to the Executive Director while in line at the ceremony. Id.
The next year, on June 2, 2015, Complainant sent an e-mail to S1 requesting a full-time telework agreement as a reasonable accommodation for his Chronic Obstructive Pulmonary Disease (COPD) because he needed to use an oxygen tank. Report of Investigation for Agency No. 2004-0040-2015105423 (ROI 2), at 72. Thereafter, S1 informed Complainant by e-mail that she was forwarding his request to another Local Reasonable Accommodation Coordinator (LRAC) because, as his supervisor, she was not permitted to have his medical documentation pursuant to Agency policy. Id. at 72-73. S1 attested that, at the time of Complainant's request, she was Complainant's supervisor and was also the LRAC. Id. She explained that, because it would have been a conflict for her to function in both the roles of LRAC and Complainant's supervisor, she appointed an EEO Specialist to serve as the alternative LRAC. Id. Nevertheless, S1 immediately approved Complainant's request to telework on a full-time basis, while Complainant secured the requested medical documentation from his doctor. Id. Complainant, however, did not submit the requested documentation. Therefore, on August 22, 2015, the EEO Specialist again asked Complainant for updated medical documentation. Id. at 180-82. Therein, the Specialist asked that Complainant's medical documentation address whether Complainant could use his oxygen tank while commuting to work and how long he would need the requested accommodation. Id.
Meanwhile, according to S1, Complainant stopped sending her work plans and accomplishment reports while teleworking in August 2015. Id. at 87. S1 attested that she required employees to provide her with their telework schedule at the beginning of each week and provide her with a weekly work plan covering their upcoming telework days. Id. at 86-87. S1 stated that she also requested that each employee provide her with a weekly accomplishment report by the end of each week. Id. S1 attested that she repeatedly sent Complainant e-mails and left voicemail messages asking him to contact her, but he failed to do so. Id. at 87. Therefore, on August 26, 2015, S1 sent Complainant a letter, informing him that he had been absent from his position since August 19, 2015. Id. S1 additionally stated that she e-mailed Complainant on August 19-21 and 24, 2015, notifying him that she may have to place him on absence without leave (AWOL) because she did not hear from him. S1 moreover stated that she called Complainant on August 25, 2015, at his personal phone numbers and on the number for his government-issued cell phone, but there was no response. Id. Ultimately, S1 decided to place Complainant in an AWOL status for five days. Id. at 101. However, Complainant stated that his laptop was broken and he sent his weekly report from his "Gmail" account, which he was using to submit work. Id. at 16.
Complainant subsequently filed two EEO complaints on October 22, 2014, and October 19, 2015, respectively, alleging that the Agency discriminated against him on the bases of national origin (Hispanic), sex (male), disability (COPD and mental impairment2), and age (67) when:
1. On October 9, 2014, he was issued a Letter of Admonishment for inappropriate conduct;
2. On or about September 11, 2015, Complainant was informed by S1 that he needed to provide additional medical documentation for his reasonable accommodation request, which he previously submitted on May 26, 2015; and
3. On September 9, 2015, S1 placed him in an unpaid leave status.
Following the investigations, the Agency provided Complainant with a copy of the reports of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's October 20, 2016, motion for a decision without a hearing and issued a decision without a hearing on February 28, 2017. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The AJ found, with regard to claims 1 and 3, that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to show were a pretext for discrimination. The AJ found that the Agency issued Complainant the Letter of Admonishment after an investigation revealed that Complainant had made inappropriate comments to the Executive Director while in line at the farewell ceremony. In finding no evidence of a discriminatory motive, the AJ noted that Complainant admitted complementing the Executive Director about her appearance. The AJ further observed that a witness corroborated the Executive Director's account that Complainant had in fact made the inappropriate comments as described. In addressing claim 3, the AJ observed that Complainant had not been responding to S1 while teleworking and did not provide S1with reports or other documentation to show that he was in fact working. The AJ noted that, although Complainant alleged that he was denied the necessary support for teleworking, he did not allege any such problems until after the period in which he was unresponsive to S1. The AJ therefore found that the AWOL charges against Complainant were appropriate and not motivated by discrimination. The AJ further found that Complainant did not show that he was denied a reasonable accommodation for his disability (claim 2). In so finding, the AJ noted that Complainant was immediately granted his request to telework on a full-time basis, and the Agency only requested medical documentation based on the belief that the documentation Complainant provided was insufficient. The AJ found no evidence that the Agency violated the Rehabilitation Act in seeking the requested medical documentation from Complainant. The AJ specifically found that, while the Agency may have had some medical information on Complainant, there was no evidence that the documentation fully demonstrated Complainant's need to telework on a full-time basis. The AJ therefore found that Complainant did not show he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not file a brief on appeal. The Agency requests that we affirm its final order, which fully implemented the AJ's decision.
STANDARD OF REVIEW
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. See 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9. � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and the Agency's, factual conclusions and legal analysis -- including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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
Summary Judgment
We must 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. Dep't of Def., 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 n.5. 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).
After a review of the record, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given an opportunity to respond, he was given a comprehensive statement of undisputed facts, and he had the opportunity to engage in discovery. For the reasons discussed below, we find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Disparate Treatment (Claims 1 and 3)
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she 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 802 n. 13. 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, a 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based his protected classes, the Agency articulated legitimate. nondiscriminatory reasons for its actions. Specifically, with regard to claim 1, S1 explained that the Letter of Admonishment was issued to Complainant due to his inappropriate comments to the Executive Director, which a coworker witnessed. As for claim 3, S1 stated that Complainant was placed on AWOL because he was unresponsive to her while he was teleworking.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were a pretext for discrimination. Burdine, at 254. In attempt to show pretext, Complainant believes that he did not say anything to the Executive Director that warranted the admonishment and contends that he was being stereotyped based on his protected classes. Complainant further states that he was not aware that he had been placed on AWOL until he reached out to S1 about not receiving his pay check. Complainant states that his laptop was broken and he had been using his Gmail account to submit work.
Notwithstanding Complainant's contentions, we find that he was not established that the Agency's reasons were a pretext for discrimination. Specifically, with regard to claim 1, we note that Complainant does not dispute that he complimented the Executive Director on her appearance on the day in question. There is no dispute that a coworker corroborated the Executive Director's account of the comments made to her by Complainant. We further can find no evidence that S1 was motivated by discriminatory animus in placing Complainant on AWOL for the time period at issue. In finding that Complainant did not establish discrimination with respect to claim 3, we note that Complainant failed to respond to the EEO Investigator's multiple requests for an affidavit. ROI 2, at 2. As such, we find that Complainant did not show that he was subjected to disparate treatment regarding claims 1 and 3.
Reasonable Accommodation (Claim 2)
The Commission notes that 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. To establish a denial of 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. The Commission will assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability.
Upon review, we find that Complainant did not show that he was a denied a reasonable accommodation as alleged. In particular, there is no dispute that management immediately granted Complainant's request to telework on a full-time basis due to his medical condition. Further, Complainant's ability to telework on a full-time basis continued indefinitely. To the extent that Complainant believed that management improperly asked him for additional medical documentation to support his request, we note that an Agency may request medical documentation that includes information about the disability, the activities it limits, and the need for accommodation if the disability and/or need for accommodation is not obvious, or if information already submitted by the individual is insufficient for the Agency to make these determinations. Questions and Answers: Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation (Oct. 20, 2000). Complainant has not shown that the Agency's request for medical documentation to support his request to telework on a full-time basis violated the Rehabilitation Act. As noted above, Complainant was allowed to continue to telework on a full-time basis even though he had not submitted the requested medical documentation. We also note that Complainant failed to respond to the EEO Investigator's request for an affidavit with regard to claim 2, as well. As such, we find that Complainant did not establish that the Agency violated the Rehabilitation Act here.
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 order.
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
__9/14/18________________
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.
2 Complainant's mental impairment was not identified in the record.
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