0120160923
06-22-2018
Jefferey G.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jefferey G.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120160923
Agency No. EUFY14152
DECISION
On January 9, 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 December 2, 2015, 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 MODIFIES the Agency's final decision.
ISSUES PRESENTED
In the instant appeal, we examine whether the final agency decision (FAD) properly found that Complainant did not establish that he was discriminated against or subjected to harassment based on disability and reprisal for prior EEO activity when:
1. on September 29, 2014, human resources personnel failed to forward his medical documentation and request to defer his assignment through the Priority Placement Program to gaining command due to health reasons; and
2. on three separate occasions in September 2014, after Complainant was offered a position through the Priority Placement Program, the Feltwell Principal continually switched his duty hours, directed him to report to work, and checked his arrival and departure times.
3. He was denied a delayed start date for an Administrative Support Assistant position in Sacramento, California, as a reasonable accommodation.
BACKGROUND
The Agency's FAD thoroughly discussed the facts in the record. While the instant decision provides a summary of the pertinent facts, it incorporates them as stated in the FAD. At the time of events giving rise to this complaint, Complainant was just notified that his tour as a School Support Assistant at the Agency's Feltwell Elementary School (FES) facility in England was expiring. Complainant was subject to the Agency's policy covering foreign-area employment, which limited him to a 5-year overseas tour. Upon completion of the tour he was eligible for registration in the Priority Placement Program (PPP).2 Complainant promptly registered for the PPP on August 29, 2014, and received a tentative job offer to a GS-06 Administrative Support Assistant (ASA) with the Army Corp of Engineers (ACE) in Sacramento, California. He received the final job offer to this position, on September 9, 2014, and was advised that he would be separated if he declined.
ACE requested that Complainant report immediately, but no later than 45 days from acceptance of the job offer. The Agency's Lead Human Resources Specialist (LHRS), who was handling Complainant's case and PPP registration requested that ACE establish a start date, and advised that he would give Complainant a start date of October 31, 2014, if none was provided. ACE requested an October 19, 2014, start date, and Complainant responded that despite being under medical care, and needing to get travel documents for his wife and children, he intended to meet the reporting date.
Complainant subsequently saw his physician who advised by letter dated September 29, 2014 that a move at this time would be "deleterious to his health" and that it would be wise to delay relocation for some time until his health improved. The LHRS forwarded this letter to the PPP Civilian Transition Program (CTP) Deputy Administrator, as well as, ACE on October 2, 2014. Upon review, Complainant's start date was pushed back to October 31, 2014.
Complainant was often absent from work in September and October 2014, due to preparation for his relocation, or being out sick. Occasionally the FES Principal had difficulty locating him. Consequently, on two days (September 23 and October 8, 2014) when he was unable to locate Complainant, the Principal instructed him to report for duty.
Complainant obtained statements from his physician, in mid-October, he was not able to work. These statements covered the period from October 13 through December 8, 2014. As a result, the CTP Administrator rescinded the ACE job offer and Complainant was removed from the PPP on November 15, 2014, since he was not medically able to travel. Two weeks later Complainant's physician cleared him to return to work at FES for 4 hours per day on a flexible schedule. Complainant has since returned to his FES job full time.
On December 31, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act as articulated in the statement of Issues Presented above. 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 Equal Employment Opportunity Commission Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII and Rehabilitation Act case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of national origin and disability, we find that the Agency articulated legitimate, non-discriminatory reasons for the non-selection, and that Complainant failed to demonstrate any conduct on the part of the Agency was based on discriminatory animus.
The record demonstrates that the LHRS submitted all Complainant's paperwork and medical documentation to the ACE as required by the PPP placement process. This is evidenced by the change in start dates, as well as, the information provided to Complainant on the medical care he would be able to access once he relocated to Sacramento. It is also clear from the record that Complainant had been permitted to work a very flexible schedule to account for his testing and medication regimen, but that sometime in early-October, Complainant's duty hours were changed to better support the school's mission. On at least three occasions it is documented that Complainant was scheduled to report for duty, but was unavailable and could not be located. The decision to revise Complainant's duty hours was made in part to enable his hours to coincide with the hours of employees who required office supply support from Complainant.
In sum, our review of the record confirms the Agency's assertion that its decisions were based on its determination of how best to effectively manage the workplace, and its assessment of Complainant's conduct in the workplace - mainly his failure to report for duty as scheduled on several occasions. Nothing in the record, or submitted on appeal by Complainant, demonstrates that the actions were in any way motivated by discriminatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Denial of Reasonable Accommodation
Under the Commission's regulations, 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. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, 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.
It is undisputed that Complainant is a qualified individual with a disability. The Agency concedes that Complainant is an individual with a disability entitled to the protections afforded under the Rehabilitation Act. Additionally, he was offered the ASA position and was given a tentative start date. ACE was responsible for handling the reasonable accommodation requests because they were the "gaining activity." A change in the start date beyond 45-days of acceptance of the offer could not be made without approval from ACE. ACE agreed to move Complainant's start date from October 19, 2014 to October 31, 2014. Based on the record before us, we conclude that Complainant would have been able to successfully assume and integrate into the ASA position had the Agency permitted him to delay his start date. We find that this failure on the part of the Agency was a denial of a reasonable accommodation, and that the Agency failed to establish that delaying Complainant's start date until December 8, 2014 would have caused an undue hardship. On the contrary, the Agency did not present Complainant with any alternative that would enabled him to accept the GS-06 Administrative ASA position.
While we would agree that ACE was not required to accept an indefinite start date from Complainant, the record indicates that had the Agency engaged in an interactive process with Complainant it would have discovered that Complainant had a definitive date that his physician identified he would be able to report for duty.3 The Agency did not meet the burden of showing that this later date of December 8, 2014, would have posed an undue hardship. Merely stating that ACE was anxious to have the position filled, is not enough to justify the Agency declining to consider a later date as a reasonable accommodation. Accordingly, we find that Complainant did establish that he was denied a reasonable accommodation when the Agency rescinded his offer of employment under the PPP because he was unable to report on October 31, 2014.
Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII 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." Id. at 23. An abusive or hostile working environment exists "when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the condition of the victim's employment." Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and severe, a single incident, or group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep't of Labor, EEOC Request No. 05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996).
The Agency concluded that Complainant failed to establish a claim of harassment because he failed to show that that he was subjected to severe or pervasive treatment such as to create an unlawful work environment on any basis. Instead, the incidents complained of here appear to have been reasonable actions of Complainant's supervisor and other management officials taken in the course of discharging their supervisory responsibilities. The incidents identified were in the nature of common interactions and employment actions that would occur between a supervisor and a subordinate employee in the workplace. We agree with the Agency's findings in the FAD that the incidents, considered together and taken as a whole, do not rise to the level of a discriminatorily hostile workplace.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD, finding that Complainant was not discriminated against based on disability and reprisal, is MODIFIED. The portion of the complaint concerning the denial of a reasonable accommodation is REVERSED and REMANDED for proceedings consistent with this decision and the ORDER below.
ORDER
The Agency is ORDERED to take the following remedial action, within one hundred and twenty (120) calendar days of the date this decision is issued:
1. The Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford him an opportunity to establish a causal relationship between the Agency's retaliation and his pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. � 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
2. The Agency shall provide at least eight hours of in-person EEO training to the CTP Administrator regarding their responsibilities under the Rehabilitation Act, with special emphasis on providing reasonable accommodations.
3. The Agency shall consider taking appropriate disciplinary action against the CTP Administrator. The Agency shall report its decision to the Compliance Officer referenced herein. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the identified management officials have left the Agency's employment, the Agency shall furnish documentation of the departure date(s).
POSTING ORDER (G0617)
The Agency is ordered to post at its Army Corps of Engineers (ACE) facility in Sacramento, California copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
__6/22/18________________
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 PPP is an independent outplacement program operated by the Agency, designed to place employees within the Agency who have been adversely affected (i.e., lost employment) through no fault of their own.
3 The Commission's precedent establishes that an agency cannot be held liable solely for a failure to engage in the interactive process. Liability for a failure to engage occurs when, like in the present case, the failure to engage in the interactive process results in the agency's failure to provide reasonable accommodation. Broussard v. United States Postal Service, EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). The purpose of the interactive process is to facilitate the identification of an appropriate reasonable accommodation. Id.
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