Irvin M.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.Download PDFEqual Employment Opportunity CommissionSep 11, 20180120161859 (E.E.O.C. Sep. 11, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irvin M.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency. Appeal No. 0120161859 Hearing No. 570-2015-00397X Agency No. DOS-0178-14 DECISION On May 13, 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 April 14, 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. BACKGROUND Complainant worked as a Special Agent, FS-04, within the Agency’s Diplomatic Security Service. At the time, he was assigned to the Agency’s Headquarters in Washington, D.C. On June 11, 2014, Complainant filed an EEO complaint in which he set forth the following claims of discrimination: 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. 0120161859 2 1. On June 2, 2014, the Chief of the Reasonable Accommodation Division (C-RAD) denied Complainant’s request for a reasonable accommodation by not reassigning him to the Boston Field Office (BFO); and 2. Since December 2013, a Sen,ior Assignments Officer (SAO), two Career Development Officers (CDO-1 and CDO-2) and the C-RAD discriminated against Complainant because of his national origin2 (Hispanic), color (black), disability (lumbar disc disease) and opposition to what he characterized as unlawful discrimination by subjecting him to a hostile work environment in connection with his efforts to request a reassignment to the BFO. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision 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. As a law enforcement officer within the Diplomatic Security Service, Complainant was required to provide protection to diplomatic officials as well as foreign dignitaries. As a member of the Foreign Service, he was frequently posted overseas. In accordance with established procedures, he successfully bid on a two-year overseas assignment to La Paz, Bolivia, which was to commence in November 2013. Complainant first displayed symptoms on November 5, 2013, and in December 2013 was diagnosed with hypertension, lumbar disc disease, and traumatic Foraminal Stenosis of the L5 and S1 vertebrae. His condition caused him to experience severe pain in his lower back and legs. He averred that since November 2013, his condition had restricted his major life activities of sitting, walking, standing, bending, and stooping for more than twenty minutes at a time. He further averred that he used a cane while walking, that he was prone to falls, and had difficulty tying his shoes and performing numerous physical activities without aggravating his condition. He also stated that between November 2013 and January 2014, he was not able to stand or sit at all and that he needed assistance to use the toilet, had to be transported horizontally, and had to use a walker at times. On March 13, April 4, May 14, and July 8, 2014, Complainant’s treating physician submitted medical documentation in which he provided a clinical diagnosis of Complainant’s condition. He prescribed a number of medications, including Gabapentin, Celebrex, Oxycodone, Zanaflex, and Zestril. The physician was unable to give a precise prognosis, however. Estimates he gave for Complainant’s recovery ranged from three months to two years. He also listed the job functions that Complainant was unable to perform. Those functions included: providing protection and 2 Complainant claimed discrimination based on race in his complaint. The Commission considers Hispanic to be a national origin and not a race. 0120161859 3 security for U.S. and foreign officials; participating in any temporary duty assignments for protective or investigative missions requiring domestic and foreign travel; serving in hazardous duty assignments in high-threat environments; participating in physical fitness tests; participating in tactical operations; and relocating until treatment is completed. The physician also stated that Complainant could return to work in a light-duty capacity and could perform the following functions: planning, developing, and conducting interviews and investigations; participating in judicial proceedings; establishing and maintaining effective working relationships with officials of foreign consulates and federal and state law enforcement agencies; safely using and qualifying with firearms without posing a risk to himself or others; performing investigative, administrative, and liaison duties. IR 74-84, 102-04, 121-23, 128-30, 138, 165, 167, 206-11. When asked what specific accommodation he requested, Complainant averred that he requested to be assigned to the Boston Field Office. IR 77-78, 82. He stated that his physician put a restriction on relocation in place so as to not cause unnecessary delays in the treatment he was receiving in Boston or disrupt the continuity of the care he was receiving. IR 77. In his letters to various Agency officials, the physician stated that transferring Complainant’s care to another location would be significantly detrimental. IR 103, 122, 128-29, 138, 210-11. Complainant notified CDO-1 via email on December 13, 2013, that due to his medical restrictions, he would not be able to assume his assigned post in La Paz. He requested that he be reassigned to the BFO. CDO-1 replied on December 16, 2013, informing him that his Bolivia posting would be cancelled and that he would be placed in over-complement status pending his reassignment.3 CDO-1 also told Complainant that the Diplomatic Security Service would have to determine whether it could temporarily place him the BFO pending his recovery, and that this would require double encumbrance approval in addition to approval from the BFO. IR 123, 125, 166, 212. On March 13, 2014, Complainant submitted a formal request for a reasonable accommodation in which he asked to be reassigned to the BFO for the duration of his medical treatment. IR 168. On June 2, 2014, the C-RAD notified Complainant that his request had been denied because the medical information Complainant had provided was insufficient for the Medical Services Office to make a determination as to whether Complainant was a qualified individual with a disability. IR 119, 133, 214. In an email to Complainant dated June 10, 2014, a Reasonable Accommodation Division (RAD) staff member provided Complainant with the RAD’s reason for denying his request: Here is the reviewing MED official’s explanation for the documentation you provided: “I am not able to make a determination at this time. As we discussed, 3 The Agency maintained a policy in which it defined over-complementing as assigning a Foreign Service employee to a bureau but not to an authorized position within that bureau. The policy actively discouraged this practice and stated that to the extent that assignments to over-complement status were necessary, they should be limited to the shortest period of time necessary. IR 108-11, 169. All personnel assigned to over-complement status were assigned to Washington D.C. IR 138, 170-71. 0120161859 4 medical documentation is not clear regarding [Complainant’s] ability or inability to perform the essential functions of his job. The physician states that his patient is unable to physically travel to another location, but does not say why. I cannot determine if the travel restriction is due to a medical condition or if there are other factors influencing this statement. The physician does state later in his documentation that his patient can perform the majority of his duties as a law enforcement officer without risk, then contradicts himself by stating the patient would be limited in protective operations, tactical operations, and extended travel, which I believe are a large majority of the tasks associated with this position.†As a result of this finding, your request was denied on the basis of inadequate medical documentation. IR 131-132. The SAO averred that prior to what would have been Complainant’s posting in La Paz, he was on a two-year rotation to the Secretary’s protective detail in Washington, D.C., and that as a result of being placed in over-complement status, his job location would not have to change. IR 166. She also averred that there were no positions available in the BFO. IR 167-68. The SAO stated that if Complainant wished to remain in the Greater Boston area, he could provide updated medical information that would support further requests for sick leave, or he could go on leave without pay. IR 170, 227-232. When asked by the EEO investigator what his prior EEO activity was, Complainant replied that he had filed EEO Complaint No. DOS-F-127-12, which was accepted on October 2, 2013. He also stated that he had voiced opposition to how his reasonable accommodation request was being processed and that the SAO became aware of his EEO activity around May 1, 2014. IR 163. Complainant identified a number of incidents, some of which were directly related to the processing of his reasonable accommodation request, that he characterized as evidence of discriminatory harassment. He averred that between February and March 2014, CDO-1 did not notify the RAD of his accommodation requests. But he admitted that on March 14, 2014, CDO-2 advised him that his reassignment to the BFO might come to fruition but that he needed to obtain approval from the Medical Services Office. IR 89-90. Complainant next averred that on May 1, 2014, the SAO and CDO-2 demanded that he report to work in Washington, D.C., notwithstanding his medical restrictions that precluded him from doing so. IR 85. The SAO responded that she merely asked Complaint to provide medical documentation to support his requests to continue using sick leave. She also opined that Complainant considered the Diplomatic Security Service’s refusal to reassign him to the BFO to be a form of harassment. The SAO also averred that she did try to assist Complainant by advising him of his options and letting him know what to do in order to continue using sick leave. IR 172. Complainant also averred that the SAO demanded that he change 232 hours of compensatory time that he had taken to sick leave without providing him with any assistance as to how to do this. IR 85-86. A series of emails dated February 20, 2014 from a timekeeper indicated that Complainant was receiving Law Enforcement Eligibility Pay (LEAP), that compensatory time was LEAP- 0120161859 5 ineligible just like annual leave and sick leave, and that Complainant had been taking ten hours per day of compensatory time when he should have been taking only eight hours. Complainant was asked to correct his time and attendance records. IR 88, 141-44. Complainant next characterized as harassment the Agency’s failure to assist him in moving his personal belongings from Bolivia back to the United States. He averred that between December 2013 and April 2014, he had contacted several officials to arrange to ship his personal belongings, but no one responded to his requests for help. IR 87-88, 123. 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 lawâ€). Reasonable Accommodation Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). We begin our inquiry by determining whether Complainant is an individual with a disability. 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 impairment; or (3) is regarded as having such an impairment. Melanie F. v. Dept. of Homeland Security, EEOC Appeal No. 0120150163 (May 19, 2017) citing 29 C.F.R. § 1630.2(g). Factors to determine whether an individual is substantially limited in a major life activity include: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; (3) the permanent or long- term impact, or the expected permanent or long term impact of or resulting from the impairment. Arnoldo E. v. Dept. of Justice, EEOC Appeal No. 0120121034 (Oct. 15, 2015) citing 29 C.F.R. § 1630.2(j)(2). Temporary, non-chronic impairments of short duration with little or no long-term or permanent impact are usually not disabilities. Coles v. Dept. of the Navy, EEOC Petition No. 03A10013 (July 13, 2001). After extensively reviewing Complainant’s medical documentation, the RAD concluded that Complainant is an individual with a disability. Accordingly, we will not disturb the Agency’s finding on that issue. 0120161859 6 We must next determine whether Complainant is a qualified individual with a disability. A qualified individual with a disability is an “individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.†Julius C. v. Dept. of the Air Force, EEOC Appeal No. 0120141294 (June 16, 2017) citing 29 C.F.R. § 1630.2(m). Complainant was unable to perform most, if not all of the essential functions of his position, which is to provide security for U.S. and foreign diplomats. Consequently, we find that the Agency was correct in its assessment that Complainant is not a qualified individual with a disability. Assuming for the sake of argument that Complainant is a qualified individual with a disability, he would be entitled to an effective accommodation, but not necessarily the accommodation of his choice. Kristie D. v. U.S. Postal Service, EEOC Appeal No. 0120160236 (Feb. 6, 2018). The burden to prove that the accommodations offered by the Agency were not effective rests with Complainant. See e.g. Victor M. v. National Security Agency, EEOC Appeal No. 0120152103 (Dec. 22, 2017) (complainant failed to prove that the provision of his classmates’ notes was not an effective accommodation); Wimbush v. U.S. Postal Service, EEOC Appeal No. 0120090109 (Feb. 13, 2009) (Despite complainant’s claim that he was not provided with his choice of accommodation, he failed to prove that the accommodation offered by the Agency was not effective). The record in this case establishes that Complainant claimed that he needed to remain within the Greater Boston Area for the duration of his medical treatment, and that Complainant’s physician could not provide an estimate of when that treatment would come to an end. The record also establishes that there were no vacant funded positions at the BFO into which Complainant could have been placed. While the Agency has a duty to make a good faith effort to locate a vacant position for which an individual with a disability is qualified, it is under no obligation to create a new position for that individual. Complainant v. U.S. Postal Service, EEOC Appeal No. 0120111541 (June 12, 2014); Nowak v. U.S. Postal Service, EEOC Appeal No. 0120065231 (May 30, 2008), request for reconsideration denied, EEOC Request No. 0520080685 (Sept. 4, 2008). In lieu of a reassignment to the BFO, the Agency offered Complainant two options: continue to use sick leave or take leave without pay. Either option would have allowed Complainant to stay in Boston while he continued to receive treatment, and was therefore effective. Complainant has not shown that either of these options was ineffective. Moreover, CDO-1’s email of December 16, 2013, shows that, contrary to Complainant’s contention otherwise, CDO-1 did attempt to accommodate Complainant by making the effort to inquire as to whether any positions were available for Complainant at the BFO. We there find that the Agency fully complied with the Rehabilitation Act when it laid out for Complainant what he would need to do in order to remain in the Boston area. Hostile Work Environment To establish a claim of discriminatory harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal 0120161859 7 or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected classes; (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). To ultimately prevail on his harassment claim, Complainant must prove that the incidents occurred because of a protected basis. Beyond motive, Complainant must show that S1 had subjected him to conduct that was either so severe or so pervasive that a “reasonable person†in Complainant's position would have found the conduct to be hostile or abusive. Since Complainant has also alleged reprisal, he must prove that the actions of the SAO, CDO-1, CDO-2, or the C-RAD were harmful to the point that they could dissuade a reasonable person from making or supporting a charge of discrimination. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). See also EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if Complainant satisfies his burden of proof with respect to all of these elements, motive and either hostility or chilling effect, will the question of Agency liability for discriminatory or retaliatory harassment present itself. Complainant established the first element of a claim of harassment by virtue of his national origin, color, disability, and previous EEO activity. Complainant found the incidents alleged to be unwelcome from his own subjective perspective, which is enough to satisfy the second element. See Floyd L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120150737 (Apr. 27, 2017). In order to establish the third element of a claim of discriminatory harassment, Complainant must show that in taking the actions that comprise his harassment claim, the SAO, CDO-1, CDO-2 or the C-RAD relied on considerations of his national origin, color, disability, or previous EEO activity that are expressly proscribed by Title VII and the Rehabilitation Act. See Aldaberto P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120142387 (Mar. 29, 2016). In this case, Complainant attempts to characterize the actions of these officials as obstructing his efforts to remain in Boston for the duration of his medical treatment. In reality, these officials were attempting to work with Complainant by looking into whether he could be assigned to the BFO and by presenting him with other options when it became clear that he could not. Returning to Washington, D.C. in over-complement status was one of those options. Using sick leave to remain in Boston was another. Regarding the time and attendance issue, Complainant was merely being advised that he needed to properly account for his time. Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents that expose any weaknesses, inconsistencies, or contradictions in the explanations provided by the SAO, CDO-1, CDO-2 and the C-RAD for the various incidents to such an extent that a reasonable fact finder could rationally find those explanations unworthy of credence. See Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). The only evidence that Complainant 0120161859 8 presented was his own unsupported assertion that the SAO, CDO-1, CDO-2 and the C-RAD made false and misleading statements about the reasonable accommodation process and threats about what would happen if he did not report to Washington, D.C. IR 92-93. With respect to these incidents, we find, as did the Agency, that Complainant failed to establish the third element of his harassment claim. We now address the Agency’s alleged failure to assist Complainant in transporting his personal effects from Bolivia back to the United States. None of the officials named in the complaint provided information on this issue. However, we do not find that Complainant has shown that the failure of the named officials to provide assistance to him in transporting his belongings back to the United States was so severe or pervasive such as to give rise to a legally hostile work environment. This conduct should be evaluated from the objective viewpoint of a reasonable person in the victims' circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Complainant must bear in mind, however, that anti- discrimination statutes are not general civility codes designed to protect against the “ordinary tribulations†of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dept. of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). We find that the Agency’s alleged failure to aid Complainant does not rise to the level of severe or pervasive behavior such that a hostile work environment existed. It merely falls within that category of common workplace occurrences that includes routine work assignments, instructions, admonishments, and in this case, administrative snafus that are neither severe nor pervasive enough to rise to the level of harassment. See e.g. Alfonso M. v. Dept. of State, EEOC Appeal No. 0120160510 (April 11, 2018); Ashley S. v. U.S. Postal Service, EEOC Appeal No. 0120162643 (Feb. 13, 2018); Annalee D. v. U.S. Postal Service, EEOC Appeal No. 0120180162 (December 28, 2017). With respect to this incident, we find that Complainant has not established that he was subjected to a legally hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding that Complainant was not discriminated against as alleged. 0120161859 9 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. 0120161859 10 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 September 11, 2018 Date Copy with citationCopy as parenthetical citation