01A23350
12-04-2003
Kenneth Hutson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Army & Air Force Exchange Service (AAFES), Agency.
Kenneth Hutson v. Army & Air Force Exchange Service
01A23350
December 4, 2003
.
Kenneth Hutson,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Army & Air Force Exchange Service (AAFES),
Agency.
Appeal No. 01A23350
Agency No. 99-140
Hearing No. 310-AO-5271X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his complaint of unlawful employment discrimination in
violation of 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. For the following reasons, the Commission
reverses and remands the agency's final order.
The record reveals that during the relevant time, complainant was employed
as a Supervisory Logistics Operations Specialist at the agency's Waco
Distribution Center facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on August 23, 1999, alleging that he
was discriminated against on the basis of a disability (alcoholism) when:
(1) he was harassed by his supervisors from March 1998 to May 1999;
(2) on or about December 21, 1998, he was issued a letter of warning;
and
(3) on or about May 28, 1999, he was issued a letter of downgrade.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of disability discrimination because he failed to show he had
an impairment which substantially limited a major life activity.
Additionally, the AJ determined that complainant failed to establish a
prima facie case of reprisal because he failed to show that he engaged
in any protected activity. Even assuming that complainant's report
of a derogatory comment about his alcoholism was protected activity,
the AJ found that there was no causal connection between the reprimands
and warnings about his performance and the alleged protected activity.
Specifically, the AJ concluded that complainant's complaint about his
supervisor's derogatory comments post dated the first oral and written
reprimands concerning his performance.
The agency's final action implemented the AJ's decision.
On appeal, complainant contends, among other things, that the record
demonstrated he informed his supervisors that he was an alcoholic and
that he was enrolled in a treatment program. He contends the agency
never asked for documentation of his participation in a rehabilitation
program and that his previously friendly relationship with his second
level supervisor (RMO1), occurred before he told him he had a problem with
alcohol abuse. He objects to the AJ's conclusion that his resignation
was voluntary because, he contends, the record is clear that he resigned
due to a downgrade at 50% of his previous salary. In support of this,
he submitted the determination by the Texas Workforce Commission Decision
that his unemployment benefits should be awarded because his resignation
was deemed to be involuntary.
Complainant argues that the agency discriminated against him because it
violated its own policy providing the employee suffering from alcoholism
with a firm choice between treatment and discipline. He contends
the investigation was incomplete and untimely to such an extent that
the agency should have been sanctioned by barring it from requesting a
decision without a hearing. As an example of missing pertinent evidence,
complainant cites to the letter he wrote to the agency in response to
the decision for a downgrade.
The agency objects to the additional evidence complainant submitted
on appeal as being improper because it predated the AJ's decision.
The agency argues that the AJ's factual findings should be upheld as
long as they are supported by substantial evidence in the record.
Responding to the claim that the record was incomplete, the agency
contends that complainant never raised the issue prior to appeal and it
should not be considered at this late date.
ANALYSIS AND FINDINGS
The standard for our review of the AJ's decision to grant summary
judgment is de novo, meaning that the Commission examines the record
without regard to the facts and legal determinations of the AJ.
Equal Employment Opportunity Commission Management Directive for
29 C.F.R. Part 1614 (MD-110), ch.9-15 (Rev. November 9, 1999).
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ erred when she
concluded that there was no genuine issue of material fact in this case.
Specifically, the AJ found as a matter of law that complainant did
not demonstrate he had a disability because the record did not contain
medical documentation that he sought medical treatment or that he was
evaluated to determine the extent of the alcohol problem. We view the
lack of documentation in the record as the responsibility of the agency
in performing an adequate investigation.
Our review of the record indicates that complainant informed the
agency that he had alcoholism, that he was enrolled in a treatment
program beginning in March 1998 and that he was "battling a disease"
in his entries on employer/employee communications. The first such
entry occurred in May 1998 and the second in September 1998. Thus,
viewing the evidence in the light most favorable to complainant, he
had a significant medical condition about which the agency was aware.
There remains however, the issue whether complainant's condition
constituted a disability within the meaning of the law. On this issue,
the record is scant. Once the complaint was filed, it was incumbent on
the investigator and the agency to gather the appropriate documentation
to confirm his diagnosis. Agencies are responsible for conducting
an appropriate investigation of complaints filed against them and
developing an appropriate factual record. EEOC Management Directive
110 Chapt. 5-28 (rev. 11/9/99). An appropriate factual record is one
that allows a reasonable fact finder to draw conclusions as to whether
discrimination occurred. Id. Medical documentation and the agency's
attempts to obtain such is an appropriate and necessary part of an
investigation surrounding a claim of disability discrimination.
Here, the record does not reflect that the investigator requested medical
documentation of complainant's condition. Nor is there any indication
that the AJ gave complainant an opportunity to put evidence on the record
through a period of discovery or by requiring the agency to supplement the
record, such that it can be said that the record was fairly developed.
See Petty v. Department of Defense EEOC Appeal No. 01A24206 (July 11,
2003) (the Commission held that the AJ erred in granting summary judgment
where the agency was not required to produce evidence tending to prove
pretext). Our regulations contemplate that once an AJ is appointed, he
or she assumes �full responsibility for the adjudication of the complaint
including overseeing the development of the record. 29 C.F.R.� 1614.109
(a). We conclude, therefore, that the AJ did not allow for an adequate
record to be compiled before reaching the conclusion that complainant
was not disabled as a matter of law. For that reason, summary judgment
was not appropriate in this case.
Complainant has essentially claimed disparate treatment based on a
disability and reprisal when he was subjected to various disciplinary
measures including demotion. In order to prove disability-based
harassment, complainant must prove: (1) that he is a member of a
statutorily protected class; (2) that he was subjected to unwelcome
harassment; (3) that the harassment complained of was based on his
disability; (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. Flowers v. Southern Reg'l Med. Servs.,
Inc., 247 F.3d 229, 235-36 (5th Cir. 2001).
Complainant does not appear to claim that he was denied a reasonable
accommodation as the AJ states.<1> Rather he argues that the
agency's disciplinary actions were taken because he was an alcoholic.
On this issue, the record indicates that there is disputed evidence.
In particular, the agency contends that it reprimanded and ultimately
downgraded complainant due to his poor performance. There is evidence
however, that complainant was a top performer throughout his earlier
years with the agency. RMO1, who approved the unsatisfactory rating and
underwrote the reprimand and downgrading, previously rated complainant as
either superior or outstanding for the previous four years recommending
that he be "promoted ahead of others." In addition, a similarly situated
employee who was not disabled, was warned about his performance but was
not demoted. The agency explained that this employee showed improvement.
In contrast, complainant's first line supervisor (RMO2) stated that he had
shown improvement, but she ultimately recommended that he be terminated.
This evidence raises a sufficient question whether complainant was
treated differently because of his alcoholism.
Complainant alleged in his complaint that the demotion due to his
disability was so severe that he was forced to resign which amounted to a
constructive discharge. The AJ concluded that complainant's resignation
was voluntary. We find that this was error because the record presented
opposing facts tending to show that complainant's resignation was forced,
such as the extent of his demotion and his letter outlining his objection
to the demotion.
In order to prove constructive discharge complainant must prove that:
1) a reasonable person in complainant's position would have found the
working conditions intolerable; 2) the conduct causing the intolerable
working conditions is an EEO violation; and 3) complainant's resignation
was caused by the intolerable working conditions. Taylor v. Army &
Air Force Exchange Service, EEOC Request No.05900630 (July 20, 1990);
Perricone v. United States Postal Service, EEOC Request No. 05900135
(June 11, 1990). If complainant demonstrates that the disciplinary
actions leading up to his demotion were motivated by disability
discrimination, he may also be able to prove his resignation was a
constructive discharge under the elements set forth above. On remand,
the AJ should first consider whether the actions of the agency were
based on a discriminatory motive and if so, it is appropriate to weigh
any competing evidence regarding the voluntariness of his resignation.
Moving now to complainant's claim of reprisal, we disagree that
complainant did not establish a prima facie case of reprisal based on his
complaint to RMO1 about RMO2's comments about his alcoholism. Based on
RMO1's sworn statement, complainant came to him to report that RMO2 had
made comments to others, including supervisors, about his alcoholism.
RMO1 further stated that he told RMO2 to meet with complainant about the
matter. Subsequently, RMO2 recommended that complainant be terminated.
Although the initial written reprimand occurred before complainant's
protected activity, the much more serious disciplinary action came
afterward. This, in addition to evidence that a similarly situated
employee who had also been reprimanded was not demoted as well as evidence
of his outstanding performance in the recent past, is enough evidence
to support an inference of discriminatory motive based on reprisal.
See EEOC Compliance Manual Section 8, �Retaliation� No. 915.003 at p
8-13 (May 20, 1998). See also Whitmire, v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000).
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission reverses the
agency's final action and remands the matter to the agency in accordance
with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the Dallas District
Office, the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973,as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 4, 2003
__________________
Date
1The Commission has stated that the 1992
amendments to the Rehabilitation Act call for application of standards
of the Americans with Disabilities Act which permit employers to apply
the same qualification standards regarding job performance and conduct
to employees without disabilities such as alcoholism. That being said,
an employer does not have to excuse conduct or performance standards
as a form of reasonable accommodation and does not have to provide a
firm choice between treatment for alcoholism and disciplinary action.
See e.g. Johnson v. Department of Interior, EEOC Appeal No. 03940100
(March 28, 1996) citing Humphrey v. Department of the Army, EEOC
No. 03980005 (April 23, 1998).