0120142420
12-15-2016
Johnathon M.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Johnathon M.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Centers for Medicare and Medicaid Services),
Agency.
Appeal No. 0120142420
Hearing No. 531-2012-00395X
Agency No. HHS-CMS-0109-2012
DECISION
On June 13, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 22, 2014, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist at the Agency's Centers for Medicare and Medicaid Services.
On March 29, 2012, Complainant alleged discrimination when he was subjected to harassment on the bases of race (African-American), color (Dark Brown), religion (Christian), disability, and in reprisal for opposing discriminatory practices and in requesting reasonable accommodation in 2011. In support of his claim of harassment, Complainant alleged that the following events occurred:
1. From January 2011 to January 2012, the Director and Deputy Director refused to issue Complainant the performance standards for his position despite Complainant's multiple requests;
2. From February 2011 to January 2012, the Director and Deputy Director allowed Complainant's co-workers to send him racially and religiously offensive emails;
3. From March 2011 to January 2012, the Director and Deputy Director:
a. Denied Complainant's training requests;
b. Removed his substantive assignments from his workload; and
c. Denied him the opportunity to perform new substantive assignments that became available.
4. In November 2011, the Deputy Director issued Complainant a memorandum informing him that his performance was poor;
5. On November 17, 2011, the Director and the Deputy Director refused to provide Complainant with a reasonable accommodation; and
6. On January 12, 2012, the Agency constructively discharged him during this probationary period.
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 (AJ). Complainant timely requested a hearing. The AJ assigned to the case granted the Agency's December 11, 2013, motion for a decision without a hearing and issued a decision on February 6, 2014, in a Bench Decision without a hearing. The decision was subsequently issued on March 21, 2014.
The AJ found that there were no material facts in dispute. Complainant, prior to the bench decision, tried to amend the complaint to include a claim of mental disability discrimination when he was denied a reasonable accommodation. The AJ found and Complainant did not challenge that he did not request any reasonable accommodation based on any alleged mental disability. The AJ held that the only reasonable accommodation requested by Complainant was for a chair and foot rest based on conditions related to his back, hip, shoulder, knee and feet. Therefore, the AJ denied Complainant's claim to amend his claim to include the basis of "mental disability."
In adjudicating the remaining claims, the AJ found the following undisputed facts were established in the record, developed during the investigation:
Complainant was began his employment in January 2011 and was terminated from his position on January 11, 2012, prior to the end of his probationary period. Complainant was recommended for his position by the Team Lead, and the Director selected him. However, the Director retired in December 2011, and the Deputy Director, who joined the workplace in August 2011, became Complainant's first line supervisor. The AJ found that Complainant was provided with the requirements for his job no later than November 1, 2011, noting that Complainant was issued a performance counseling memorandum on that date. Complainant was informed of problems with regard to writing and understanding what was required of him with respect to work tasks. The AJ held that the record showed that otherAgency employees noticed that Complainant was experiencing difficulties with basic concepts and assignments, and provided feedback to the Team Lead as early as Febraury 2011. Complainant was sent to training in March 2011 for cloud computing and was provided additional training classes in April 2011.
The Team Lead touched based with Complainant in April 2011, and suggested that he contact other members of the team to get summary of their projects to assist him in creating a document to explain the team's role. Rather than colleting and composing the information, Complainant merely transmitted the responses from his team members. In May 2011, Complainant was asked to serve as a team liaison. In that month, Complainant was asked to provide the Team Lead some information which he did by cutting and pasting content of documents into an email. She found that Complainant was having difficulty completing simple matters causing her concern. In September 2011, Complainant requested and was granted additional training time.
However, despite receiving training and assistance from coworkers, Complainant did not reliably input the data and had to be removed from the assignment. The Team Lead also spoke to Complainant about formatting issues that happened in sharing of documents. In October 2011, the Team Lead raised her concerns over Complainant's performance with the Director. In that month, he was asked to provide a summary which he submitted as a one sentence item in an email which was very general. He was also asked to provide an update on a spreadsheet but the Team Lead could not understand the update. On November 1, 2011, Complainant was issued a performance counseling memorandum explaining deficiencies with his work. The memorandum also reminded Complainant that he was still serving in his probationary period and could be subjected to termination.
On November 15, 2011, Complainant contacted the help desk stating that a program had not been pushed to his laptop. On November 22, 2011, Complainant contacted the help desk again stating he still could not get into that particular program. On November 30, 2011, the owners of the program application asked Complainant to provide information so that they could look into the issue. December 1, 2011, the owners reminded Complainant that he had not provided the information they requested and the matter appeared to be resolved December 2, 2011. Then on December 8, 2011, Complainant was performing work on the program when he encountered an error message which did not get resolved until December 16, 2011. The AJ noted that rather than learning the program he had been given, Complainant focused on learning a new program that was not required for him to use for another 60 days. The AJ found that Complainant showed no reason to focus learning on another program while he was having difficulties with the current program. During this time, the Director and the Deputy Director met with Complainant several times to communicate about his projects and how to do them correctly.
On November 15, 2011, Complainant requested a chair and foot rest as a reasonable accommodation. On November 17, 2011, the Agency's Reasonable Accommodation Intake Specialist (Specialist 1) contacted Complainant and had him fill out a confirmation request form. On November 23, 2011, Complainant provided medical documentation. Another Specialist (Specialist 2) contacted the Director on November 28, 2011, indicating that Complainant had submitted supporting documentation for a request for an ergonomic chair and a footstool. On December 5, 2011, the Director informed Specialist 2 that he would complete the forms approving of Complainant's request. On December 20, 2011, the Director informed Complainant that the request had been approved.
After the Director's retirement, the Deputy Director contacted an Employee Relations Specialist on January 5, 2011, indicating her decision to terminate Complainant. Around the same time, the Deputy Director informed Specialist 2 of the termination, and the reasonable accommodation process was cancelled. On January 6, 2011, Specialist 2 contacted Complainant, who informed him that the Deputy Director was not his supervisor. On January 11, 2011, the Agency mailed Complainant the notice of termination.
Based on these facts, the AJ issued his conclusions regarding Complainant's claims of discrimination, denial of reasonable accommodation and harassment. The AJ determined that Complainant failed to establish that he was subjected to an unlawful pattern or harassment or a hostile work environment. Further, the AJ noted that Complainant did not establish a prima facie case of disparate treatment. In addition, the AJ held that the Agency provided legitimate, nondiscriminatory reasons for its actions, namely that Complainant was not performing his job appropriately despite being given the opportunity to perform. As such, the AJ concluded that Complainant failed to show that he was subjected to unlawful harassment and/or disparate treatment.
The AJ then turned to Complainant's claim of denial of reasonable accommodation. The AJ noted that the requested reasonable accommodations had been approved by the Director. However, the Deputy Director chose to terminate Complainant. Under such circumstances, the AJ found that the Agency was not required to provide the requested accommodations. As such, the AJ concluded that Complainant failed to show that the Agency's action constituted a violation a Rehabilitation Act.
On May 22, 2014, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
Reasonable Accommodation
In claim (5), Complainant asserted that the Agency failed to provide him with a 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. The AJ noted that Complainant requested a chair and foot stool in November 2011. The Agency approved of Complainant's requests for an ergonomic chair and the footstool. However, the Deputy Director decided to terminate Complainant as early as January 6, 2012. As such, the requested reasonable accommodations were no longer needed. We find that the AJ correctly held that the Agency's action did not violate the Rehabilitation Act.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the AJ properly held that the Agency provided legitimate, non-discriminatory reasons for its actions. Further, the record supports the AJ's decision finding that Complainant failed to show that the Agency's reasons constituted pretext for discrimination.
Harassment
It is well-settled that harassment based on an individual's disability, race, color, religion, and prior protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes and his prior protected activity; (3) the harassment complained of was based on race, color, disability, religion and/or prior protected activity; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance 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); see also Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001).
In other words, to prove his harassment claim, Complainant must establish that he was subjected 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. Complainant must also prove that the conduct was taken because of a protected basis - in this case because of his race, color, disability, religion or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Based on a review of the record, we find that the AJ correctly held that Complainant failed to show that he was subjected to a hostile work environment. The record shows that Complainant did not establish that the alleged events occurred based on his race, disability, color, religion and/or prior protected activity.
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 implementing the AJ's decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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
December 15, 2016
__________________
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.
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