0120170433
08-22-2018
Joshua F.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joshua F.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120170433
Agency No. HS-CBP-23796-2015
DECISION
On October 31, 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 September 29, 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
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 with regard to 8 incidents which formed the basis of his hostile work environment claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Import Specialist at the Agency's Port of Laredo facility in Laredo, Texas. The Agency's FAD thoroughly discussed the facts in the record, and the instant decision incorporates them as stated. On November 15, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discriminatory harassment on the bases of disability and reprisal for prior EEO activity as evidenced by 8 separate incidents to include: ignoring his request for a meeting, requiring him to perform job duties without receiving the requisite training, repeatedly inviting Complainant to complete registration for the Basic Import Specialist Training (BIST), denial of disability payments, and others.
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). 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.
CONTENTIONS ON APPEAL
On appeal, Complainant appears to contest the FAD's determination that he failed to establish he was discriminated against and subjected to a hostile work environment on the bases of disability and reprisal when the Agency refused to exempt him from the Basic Import Specialist Training (BIST).
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
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.
The record is undisputed that Complainant is a qualified individual with a disability. In or around July 2013, before accepting the Import Specialist position, Complainant placed a condition on the acceptance of the offer that he was undergoing pain management therapy and would not be able to travel until he was completely recuperated. It is clear from the record that registration for BIST took place through multiple processes and that several individuals were involved. Complainant never requested an accommodation to attend BIST, instead he repeatedly advised management that he would not attend, and directed them to the letter from his doctor regarding his pain management therapy.
Complainant's supervisor interpreted his refusal to attend as a request for a waiver, but she denied it for failure to provide an adequate explanation. Complainant was reminded that he was required to attend unless he provided adequate medical documentation stating that due to medical reasons he was unable to participate, with or without a reasonable accommodation. Complainant failed to submit any such documentation.
Based on the record before us, we conclude that the Agency did not fail to accommodate Complainant, but alternatively it was not given an opportunity to do so because Complainant refused to participate in the process. While he may have been able to attend BIST with an accommodation, or be given a waiver, he did not follow the necessary process to secure either. Accordingly, we find that Complainant did not establish that he was denied a reasonable accommodation when the Agency denied his implied waiver request to attend BIST.
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 disability and reprisal, we find that the Agency articulated legitimate, non-discriminatory reasons for the alleged discriminatory actions, and that Complainant failed to demonstrate any conduct on the part of the Agency was based on discriminatory animus.
The record demonstrates that it could take anywhere from 6 months to 2 years for a training class to become available for a new Import Specialist. In light of this fact, it was not out of the ordinary for an Import Specialist to perform various duties of the position prior to receiving the requisite training. In the interim, a new Import Specialist would be mentored by other Senior Import Specialists until after they received the requisite training. With respect to Complainant's remaining allegations surrounding his participation in the BIST training academy, the record reflects that Complainant failed to follow the process of requesting an accommodation to attend or to be exempted from the BIST. As a result, the Agency continued to process his attendance like every other employee, reminding him repeatedly to complete his registration. The day Complainant received a home visit from a supervisor and uniformed Agency officer was the deadline for BIST registration. The visit was made as a last resort as Complainant had failed to answer his phone, nor had he completed his registration. Additionally, Complainant had been on extended sick leave and needed to provide a doctor's note for the coverage. Upon providing the note, Complainant's leave was approved and he was not charged AWOL.
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, or properly request leave; and his failure to register for a required conference or request an accommodation excusing his participation. 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).
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 AFFIRMED.
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
__8/22/18________________
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
0120170433