0120140295
09-14-2016
Judson G.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Judson G.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120140295
Hearing No. 550-2012-00157X
Agency No. DLAN110001
DECISION
On October 30, 2013, Complainant filed an appeal from the Agency's September 25, 2013, 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant failed to establish that he was subjected to discrimination on the bases of race (Caucasian), sex (male), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when in 2010 and 2011: (1) his work hours were reduced; (2) no corrective action was taken after he was assaulted by a coworker; and (3) he was instructed to submit medical documentation to the Occupational Health Clinic.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Firefighter at the Agency's DLA Installation Support facility in San Joaquin, California. The following facts are set forth in the AJ's Decision without a hearing: Complainant reported that he suffered from Post Traumatic Stress Disorder (PTSD), and that he was medically retired from the United States Air Force Reserves. Additionally, he reported that he was on medical orders for evaluation which required that he be away from the office from April to August of 2010. At some point during his employment with the Agency, management received a Medical Information Memorandum dated December 14, 2009, which determined that Complainant's medical condition rendered him "incapable" of performing the essential functions of the firefighter position. It stated that Complainant was in no position to face the life and death situations which are a part of the core functions of the firefighter position. Based on this information, the Fire Chief instructed Complainant to submit medical documentation to the Occupational Health Clinic related to his Veterans Administration diagnosis and treatment in order to be evaluated with respect to his ability to continue to perform firefighter duties.
On or around September 21, 2010, the Fire Chief received notification that Complainant was not cleared to perform firefighter duties because he had not furnished requested medical information. In response to the notification, the Fire Chief determined that he could not clear Complainant to return to his firefighter position. It was determined that the performance of the tasks and job duties involved were dangerous and considering Complainant's diagnosed condition he "posed a risk to himself and others with whom he worked." As a result of this determination, Complainant was placed in light duty status to perform administrative tasks, and his work hours were reduced from 144 hours to 80 hours per pay period. This reduction in hours reflects the reduced workload as dictated by Agency administrative needs as compared with Agency firefighter needs.
In or about early March of 2011, Complainant was poked in the buttocks with a pocket knife by a co-worker while several employees were socializing around a picnic table. An emergency technician examined Complainant immediately following the incident and found "no broken skin, red marks or blood." Complainant's Second Level Supervisor (S2) witnessed the incident and considered the matter to be "horseplay". Complainant's coworker was placed on administrative leave while the matter was investigated. During an investigative interview, Complainant was described as being evasive and providing no facts supporting his version of the incident. Complainant simply stated that he could not work under these conditions and that he intended to file a police report. It was determined that the matter constituted horseplay, and as a corrective measure a Letter of Reprimand for the coworker was proposed and sustained.
On January 7, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him 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 (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's May 16, 2012 motion for a decision without a hearing (supplemented on June 6, 2012), and issued a decision without a hearing on September 17, 2013. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant contends the AJ's decision erred in its interpretation of the "definition of a disability" and the prohibition on discrimination on the basis of disability under current law. Complainant requests that the Commission reverse the decision and issue a decision in his favor, or alternatively remand the case for a hearing on the issue of whether or not he is an individual with a disability.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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
We must first 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. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion, supplemental motion, and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII or Rehabilitation Act case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). 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.
In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies that its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
Assuming, arguendo, that Complainant is a qualified individual with a disability, pursuant to the Rehabilitation Act, and that he established a prima facie case of discrimination on the bases of race, disability, sex, and reprisal, the we agree with the AJ that he did not show that the Agency's reasons for the actions were pretextual. The Agency articulated legitimate, non-discriminatory reasons for each action it took, and Complainant failed to demonstrate that any conduct on the part of the Agency was based on discriminatory animus.
Specifically, with respect to the allegation regarding the work hour reduction, the Fire Chief made a decision to place Complainant on light duty status after receiving information from several sources that Complainant could not be medically cleared to perform the duties of the firefighter position. The record reflects that the Fire Chief followed precedent and protocol employed in similar cases where a firefighter had not been cleared for duty.
With respect to Complainant's allegations surrounding the pocket knife incident, the Agency placed the responsible coworker on administrative leave pending a complete investigation of the incident. Although it was determined that what occurred amounted to nothing more than horseplay, the coworker was issued a Letter of Reprimand as a corrective measure. Regarding Complainant's final allegation that it was improper for the Agency to request medical documentation from him, it is clear from the record that the Agency only made this request after obtaining information from both Complainant, and other sources, that he was not able to perform the duties of the firefighter position due to his impairment. The Commission has held that an employer may ask an individual for reasonable documentation about that person's disability and functional limitations when the disability or need for accommodation is not obvious. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) at 12-13. Absent evidence of unlawful motivation, a decision by the Agency to request this information should not be second-guessed by the reviewing authority. See 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
With respect to Complainant's contention that he was subject to a hostile work environment with respect to any of the matters set forth in his complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to demonstrate that he was subjected to discrimination on the bases of race (Caucasian), sex (male), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when in 2010 and 2011: (1) his work hours were reduced; (2) no corrective action was taken after he was assaulted by a coworker; and (3) he was instructed to submit medical documentation to the Occupational Health Clinic. The Agency's final order is AFFIRMED.
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
__9/14/16________________
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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