EEOC Appeal No, 0120161282
05-17-2018
Ike D. v. Dep't of Veterans Affairs
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ike D.,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120161282
Hearing No. 540-2014-00012X
Agency No. 200P-0345-2012102669
DECISION
On February 23, 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 January 28, 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
The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly dismissed Complainant's hearing request; and (2) whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race and/or disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Administrative Specialist, 0902, GS-9, in the Agency's Phoenix, Arizona VA Regional Office. Complainant's first-line supervisor was a Supervisory Legal Administrative Specialist (S1).
S1 stated that Complainant was placed on a 90-day performance improvement plan (PIP) in October 2011 for issues with the quality of his work. According to S1, Complainant did not successfully complete the PIP at the end of the 90-day period in January 2012, so S1 continued to closely monitor Complainant's work.
On February 14, 2012, Complainant was involved in a car accident. The emergency room diagnosed Complainant with a closed head injury, abrasion to the face, cervical strain, and concussion. Complainant returned to work on February 21, 2012, but he stated that he continued to have severe headaches, memory loss, and an inability to concentrate. According to Complainant, the noisy working environment exacerbated his symptoms.
On March 19, 2012, Complainant submitted a doctor's note requesting that he be given two additional 15-minute breaks during the workday for post-concussive headaches. S1 stated that Complainant was permitted to take the additional breaks and make the time up at the end of the workday.
Complainant alleged that on or about March 21, 2012, S1 began monitoring him more closely. According to Complainant, S1 was likely attempting to monitor his performance in order to terminate him. S1 denied monitoring Complainant more closely beginning in March 2012, noting that he had closely monitored Complainant beginning in October 2011 when the PIP started.
Complainant averred that he met with S1 and HR1 on or about March 21, 2012, and that S1 and HR1 were hostile towards him in the meeting. S1 and HR1 denied being hostile towards Complainant.
On March 30, 2012, Complainant submitted doctor's note requesting that he be reassigned to a less noisy environment and stating that he might need time off work to determine whether he had a concussion or an intracranial bleed. The note does not indicate a diagnosis or the expected duration of symptoms. A Human Resource Specialist (HR1) stated that this note did not establish that Complainant had a disability because a disability "is something that is over six months which will impact one or more major functions in your life." Report of Investigation (ROI) at 182-83.
On April 6, 2012, Complainant submitted a request for the following: a private office, the use of an environmental sound/white noise machine, the ability to listen to soothing music, uninterrupted work time, a reduction of clutter in his work environment, extra training, the provision of all communications in writing, and that someone review Complainant's work before it was submitted to his supervisor. In the alternative, Complainant requested reassignment to a different position in the Regional Office. On April 6, 2012, HR1 contacted Complainant's doctor to request information regarding Complainant's need for the requested accommodations. The record contains an April 6, 2012, doctor's note, which indicates that Complainant had a cognitive impairment of uncertain severity and that Complainant needed a neurology consult for further evaluation.
According to Complainant, on April 13, 2012, HR1 denied his reasonable accommodation request. HR1 denied formally denying Complainant's request. HR1 averred that she was still waiting to receive additional medical information. The record contains an April 11, 2012, Denial of Reasonable Accommodation form signed by HR1, indicating that the medical documentation obtained on April 6, 2012, did not establish that Complainant had a disability.
On May 11 and 14, 2012, S1 issued Complainant letters of counseling for being absent without leave (AWOL). Complainant averred that he was on approved Family and Medical Leave Act (FMLA) leave on these dates. According to S1, he did not know that Complainant had been approved for FMLA. S1 stated that he would have rescinded the letters of counseling if Complainant had returned to the office but Complainant resigned.
On June 14, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and disability (head injury) when:
1. On March 21, 2012, management began monitoring Complainant, including visiting his work area throughout the day and scrutinizing his work in an effort to force him to resign;
2. Management failed to act on Complainant's March 21, 2012, reasonable accommodation request;
3. On March 21, 2012, HR1 and S1 exhibited hostility towards Complainant when they met to discuss his injury and reasonable accommodation request;
4. On March 30, 2012, management requested additional medical documentation;
5. On April 13, 2012, Complainant's reasonable accommodation request was denied;
6. On May 11, 2012, Complainant received a letter of counseling;
7. On May 14, 2012, Complainant received a letter of counseling; and
8. On May 31, 2012, Complainant was forced to resign because management failed to provide him with a reasonable accommodation.
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 AJ on claims 1 through 7. The Agency separately processed claim 8 as a mixed case appealable to the Merit Systems Protection Board.2 Complainant requested a hearing on his non-mixed case claims, but on August 19, 2015, the AJ denied the hearing request as a sanction for Complainant's failure to comply with the AJ's September 2, 2014, Case Management Order and December 15, 2014, Order regarding discovery disputes. Both Orders directed Complainant to provide a preliminary witness disclosure statement and warned of the sanctions that could result from failure to comply.
The AJ remanded the complaint to the Agency, and the Agency issued a final decision on claims 1 through 7 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. Citing Jimenez v. Dep't of Homeland Security, EEOC Appeal No. 0120071910 (Jan. 6, 2010), the final decision found that Complainant failed to establish that he was a qualified individual with a disability because the medical documentation did not indicate the projected duration of Complainant's disability or adequately describe its severity.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency disregarded medical protocol regarding concussions. Complainant also generally contends that the Agency has been cited by the Inspector General for supervisors intimidating employees. Complainant argues that he was forced to resign for medical reasons.
In response to Complainant's appeal, the Agency contends that its final decision properly found that Complainant was not subjected to discrimination as alleged.
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").
As a preliminary matter, we address the dismissal of Complainant's hearing request. An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3). The sanctions available to an AJ for failure to provide requested relevant information include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. See Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). These sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would serve this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the complainant has engaged in contumacious conduct, not simple negligence. See Thomas v. Dep't of Transportation, EEOC Appeal No. 01870232 (Mar. 4, 1988).
Here, Complainant failed to comply not only with the AJ's Case Management Order but also with the subsequent discovery Order. Accordingly, we find that it was not an abuse of discretion for the AJ to dismiss Complainant's hearing request.
Denial of a Reasonable Accommodation
In finding that Complainant was not a qualified individual with a disability under the Rehabilitation Act, the Agency relied on the Commission's decision in Jimenez. Although Jimenez was decided in 2010, that decision concerned alleged discrimination that took place between 2000 and 2001. The events in the instant case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which expanded the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA. 29 C.F.R. � 1630.1(c)(4). Consistent with the ADAAA's purpose of reinstating a broad scope of protection under the ADA, the definition of "disability" shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. Id. The primary object of attention in cases brought under the ADA should be whether agencies have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. Id. The question of whether an individual meets the definition of disability should not demand extensive analysis. Id.
Under EEOC regulations implementing the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), an individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g)(1). Major life activities include, but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. 29 C.F.R. � 1630.2(i)(l)(i). The term "substantially limits" shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. 29 C.F.R. � 1630.2(j)(l)(i). "Substantially limits" is not meant to be a demanding standard. Id. An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. 29 C.F.R. � 1630.2(j)(l)(ii). An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Id.
We note that HR1 was incorrect in her assertion that an impairment must be expected to last at least six months in order to constitute a disability under the Rehabilitation Act. Here, Complainant was diagnosed with post-concussive syndrome and stated that he was substantially limited in the major life of concentrating, so we find that Complainant was an individual with a disability under the expansive definition of the ADAAA.
In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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(c) and (p). "The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. � 1630.2(m).
Upon a complainant's request for reasonable accommodation, an employer may require that documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, at Question 6. When an employee's disability or need for an accommodation is not known or obvious, an employer may ask an employee for reasonable documentation about his disability, limitations, and accommodation requirements. See Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, at Question 7 (July 27, 2000).
Assuming without so deciding that Complainant was a qualified individual with a disability, we find that the Agency did not fail to provide him with a reasonable accommodation. Complainant's need for accommodation was not obvious, and the medical documentation did not discuss Complainant's disability, his specific limitations, or his accommodation requirements. The Agency requested additional documentation on April 6, 2012, but the documentation provided still did not establish Complainant's need for the accommodations requested on March 21, 2012, or on April 6, 2012. Moreover, the preponderance of the evidence in the record establishes that the Agency did accommodate Complainant by permitting him to take additional breaks. Therefore, the Agency did not deny Complainant a reasonable accommodation.
Disparate Treatment
To prevail in a disparate treatment claim, 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 Constr. 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 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Complainant alleged that he was subjected to discrimination when he was issued letters of counseling for allegedly being AWOL. The Agency's legitimate, nondiscriminatory reason for issuing the counseling letter was that Complainant's supervisor did not yet know that Complainant had been approved from FMLA leave. The preponderance of the evidence does not establish that this legitimate, nondiscriminatory reason is a pretext designed to mask discrimination based on race and/or disability.
Hostile Work Environment
To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Here, we find that Complainant has failed to establish that he was subjected to harassment sufficiently severe or pervasive to constitute a hostile work environment. The preponderance of the evidence in the record establishes that management monitored his performance because he had documented performance issues, that management and Human Resources met with him and requested additional medical documentation pursuant to his requests for reasonable accommodation, and that the letters of counseling were issued before Complainant's supervisor was aware of all of the relevant facts and would have been rescinded had Complainant returned to work.
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 because the AJ did not abuse her discretion in dismissing Complainant's hearing request and because the preponderance of the evidence in the 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
5-17-18
__________________
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 The Agency issued a final decision on claim 8 on April 21, 2014. There is no indication that Complainant appealed this final decision to the MSPB.
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