Hershelv.Jackson Jr, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionJan 9, 2009
0120065200 (E.E.O.C. Jan. 9, 2009)

0120065200

01-09-2009

Hershel V. Jackson Jr, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.


Hershel V. Jackson Jr,

Complainant,

v.

Condoleezza Rice,

Secretary,

Department of State,

Agency.

Appeal No. 0120065200

Hearing No. 100-A5-0796X

Agency No. DOSF07904

DECISION

On September 15, 2006, complainant filed an appeal from the agency's

August 21, 2006, 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., and the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 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.

At the time of events giving rise to this complaint, complainant worked as

a GS-12 Information Systems Officer (ISO) at the United States Consulate

General in Ciudad Juarez, Mexico. On September 30, 2004 complainant

filed an EEO complaint alleging that he was discriminated against on

the bases of disability (chronic asthma) and age (66) and subjected to

a hostile work environment when:

1. he was denied a permanent designated parking space in the Building

A parking lot;

2. he was supervised by a person of lower rank/grade;

3. a briefing book drafted by management incorrectly identified his pay

grade and rank;

4. management threatened him that he could lose his job;

5. management has forced him to serve as Information Management (IM)

duty officer every other week; and

6. he was issued an inaccurate and unfair performance appraisal.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 December 26, 2005 motion for a decision

without a hearing and issued a decision without a hearing on July 6,

2006.

The AJ first noted that complainant alleges that the agency failed to

provide reasonable accommodation for his known disability, chronic asthma,

when he was not given a permanent parking space in the Building A lot.

The AJ found that assuming arguendo that complainant establishes

he is disabled under the Rehabilitation Act, the agency provided

complainant effective reasonable accommodation. The AJ further

explained the following: in response to complainant's request, and

during the pendency of his application for a Handicapped Parking space,

the agency authorized complainant to park in the vacant Human Resources

Officer's parking space, which is in the Building A parking area. The AJ

noted that notwithstanding the foregoing, complainant argues that this

accommodation is insufficient because the space is not specifically

designated for him. However, complainant is the only agency employee

seeking such parking accommodation and he has never had to park outside

of the Building A lot which he desires. The AJ found that consequently,

the terms, conditions, or privileges of complainant's employment have

not been negatively affected by the contested agency action herein.

The agency's reasonable accommodation of complainant's request is

effective and, hence, sufficient and does not suggest discrimination.

The AJ next considered the five alleged incidents of age and

disability-based harassment and found that complainant failed to allege

harassment severe or pervasive enough to be considered unlawful. The AJ

found that there was no genuine issue of material fact in dispute, and

found no discrimination. 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 erred in finding that he is

not disabled under the Rehabilitation Act, and contends that the agency

discriminated against him by not issuing him a permanent Handicapped

Parking space. Additionally, he states that he was subjected to unlawful

harassment, and that the AJ ought to have held a hearing in this case

so that the record could be further developed through witness direct

and cross examination.

In response, the agency asserts that given the material facts of the

case, and complainant's failure to support his contentions with specific,

substantive proof of pretext, there is no reason to overturn the AJ's

Decision. The agency notes that although complainant may not have

received the reasonable accommodation of his choice (namely, a permanent

parking spot for his exclusive use), the agency met its obligation to

provide complainant with reasonable accommodation. The agency asks the

Commission to affirm the final order.

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 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"). 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 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").

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. In this case,

it was proper for the AJ to issue a decision without a hearing.

Reasonable Accommodation

Under the Commission's regulations, an agency is required to make

reasonable accommodation to the known physical and mental limitations of

a qualified individual with a disability unless the agency can show that

accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o)

and (p). Here, assuming arguendo that complainant is entitled to

coverage under the Rehabilitation Act, and that he required reasonable

accommodation in order to perform the essential functions of his job,

the undisputed evidence of record shows that the agency in fact provided

complainant with reasonable accommodation. Specifically, complainant

was permitted to park in the Building A parking lot (the lot which he

desired because of its proximity to his office) in a spot previously

occupied by the Human Resource Officer, which was a vacant position at

the time. This record clearly indicates that complainant viewed this

parking spot as effectively2 accommodating him, and his only remaining

concern was that it was not permanent and he feared losing it if/when

the Human Resource Officer position was filled. The Commission cannot,

however, make a finding of discrimination based on the possibility that in

the future the agency might fail to provide complainant with reasonable

accommodation. Accordingly, the AJ properly issued a decision without

a hearing in the agency's favor as to this issue.

Harassment

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

A single incident or group of isolated incidents will not be regarded

as discriminatory harassment unless the conduct is severe. Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

[and the Rehabilitation Act] must be determined by looking at all the

circumstances, including the frequency of the discriminatory conduct,

its severity, whether it is physically threatening or humiliating, or

a mere offensive utterance, and whether it unreasonably interferes with

an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17

(1993). The harassment alleged in this case is not severe or pervasive

enough to be considered unlawful.

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the final

order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 (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

January 9, 2009

__________________

Date

1 The record indicates that complainant received a rating of "Excellent."

2 In the context of job performance, an "effective" accommodation means

that the reasonable accommodation enables the individual to perform the

essential functions of the position. See EEOC Enforcement Guidance on

Reasonable Accommodation and Undue Hardship Under the Americans with

Disabilities Act, Notice No. 915.002 (October 17, 2002).

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0120065200

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120065200