0120140286
06-29-2016
Kenneth W.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kenneth W.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120140286
Hearing No. 531-2012-00178X
Agency No. ODAR110437SSA
DECISION
On October 17, 2013, Complainant filed an appeal from the Agency's final order concerning his equal employment opportunity (EEO) complaint alleging 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(a). For the following reasons, the Commission AFFIRMS the 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 based on his disability when, on March 3, 2011, one of his requests for reasonable accommodation was denied, and the other was ignored, and on March 11, 2011, he was terminated from his position under the Federal Career Intern Program (FCIP).
BACKGROUND
Complainant was hired on July 1, 2009 as an Attorney Advisor (general), GS-905-11 in the Agency's Office of Appellate Operations, Office of Disability Adjudication and Review (ODAR) in Woodlawn, Maryland. The record reflects that Complainant has a cognitive disorder as a result of a traumatic brain injury sustained in 1991. Complainant has difficulty processing written information, and his ability to read, write, analyze, and resolve issues are affected. Complainant also has Irritable Bowl Syndrome (IBS), a medical condition which causes him to use the restroom frequently.
Complainant alleges that he made his first reasonable accommodation request during his six week training period when he asked to be seated away from other employees due to his gastrointestinal issues. At the completion of his training on about August 30, 2009, Complainant again requested that he be seated away from others due to his need for a "distraction free environment" and his gastrointestinal issues. Complainant states that his supervisor allowed him to select his preferred cubicle, but that soon the empty cubicles around him began to fill up.
On January 28, 2010, Complainant requested an additional accommodation of time and a half to complete his work. The request was denied by his supervisor, advising that achieving business results in a timely manner was an essential function of his position. By letter dated April 21, 2010 from his supervisor, Complainant was advised that his request was denied based on the medical officer's opinion that Complainant provided insufficient evidence to establish that he was an individual with a disability. By letter dated April 30, 2010, Complainant requested reassessment of his request.
By letter dated June 14, 2010 from the Acting Civil Rights and Equal Opportunity Manager, Complainant was advised that the medical officer reevaluated the documentation he submitted and determined that he was an individual with a disability. Complainant was advised, however, that his request was still denied because allowing him additional time to complete assignments would change the essential functions of his position.
On June 16, 2010, Complainant used the on-line reasonable accommodations request tool to request a distraction-free environment. He maintained that an audio reading adaptive device being used by a co-worker was the main distraction.2 Due to construction in September, Complainant was moved approximately three and a half feet, but he stated that he was still distracted. Complainant requested to work in one of the large closets but this was denied.
The record reflects that on August 13, 2010, Complainant was issued a performance plan for the year that contained the following critical elements for Complainant's position: Interpersonal Skills, Participation, Job Knowledge, and Achieves Business Results. In a memorandum dated November 16, 2010, Complainant was advised that his performance in the element of Achieves Business Results is not satisfactory. The relevant standards for this element are:
1. Produce a fair share of work according to supervisory expectations;
2. Completes work assignments timely and/or as scheduled;
3. Uses a balanced approach to complete work assignments effectively and efficiently using appropriate technology.
The volume of work considered indicative of a fair share of the unit's final work product would fall within the range of 70% to 130% based on the computation method used in the unit. In the memorandum, Complainant was advised that his performance in this element was not satisfactory. Complainant's cumulative productivity rate for September 2010 and October 2010 was 15.02%. Complainant was advised that he would need to improve his productivity in 60 days or his job would be in jeopardy.
On December 16, 2010, Complainant again requested additional time to complete his work. Additionally, he requested to be able to work from home because of his gastrointestinal disorder. Complainant made the requests using a reasonable accommodation request form. Complainant received a response from his supervisor, in January 2011, advising him that the Disabilities Program Manager (DPM) responded regarding his request for additional time, but when Complainant advised her that he was amending his request to add in information regarding his gastrointestinal issues as a basis to support his request to work from home, his supervisor did not give him any specifics regarding the DPM's response. In March 2011, Complainant received a letter from his supervisor informing him that the medical officer evaluated the December 2010 reassessment and concluded that the evidence was insufficient to establish a disability with respect to gastrointestinal function and his request for additional time was denied. The letter advised that he would receive a separate determination regarding his request to work from home but he never did.
On March 11, 2011, Complainant was issued a Notice of Termination, effective March 25, 2011 for unsatisfactory performance. Complainant made a final request for reassessment of his medical determination during this meeting. Complainant acknowledges that he was not meeting production requirements, but asserts that the quality of his work was good.
On June 3, 2011, Complainant filed a formal complaint of discrimination alleging that he was discriminated against 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. Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency's January 23, 2013, motion for a decision without a hearing and issued a decision without a hearing on June 26, 2013. When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission reverse the AJ's decision finding that he failed to establish that he was subjected to discrimination as alleged. Complainant requests that the Commission remand the matter back to the AJ to make a finding in his favor. Complainant contends that the Agency failed to make a good faith effort to engage in the interactive process to find a reasonable accommodation that would have enabled him to perform the essential functions of his position.
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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 and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Failure to Accommodate
An agency is required to make reasonable accommodations 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. In order to be entitled to protection from the Rehabilitation Act, Complainant must make the initial showing that he was a "qualified individual with a disability." Assuming arguendo that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, Complainant must prove, by a preponderance of the evidence that he was a qualified individual with a disability during the relevant time period. A "qualified individual with a disability" is an individual with a disability who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
Here, we find that Complainant has not established that he was qualified. We concur with the AJ's finding that Complainant was a probationary employee who, despite his supervisor's efforts to accommodate him by screening his cases and providing him with less complex matters, never met the production standards of his position. The record reflects that Complainant was repeatedly allowed opportunities to sit in distraction-free environments. He was always permitted to select his workstation, and was usually seated in an isolated area with one to two co-workers in the vicinity. Complainant informed his supervisor that the co-workers sitting nearby were not distracting him and were in fact assisting him with completing assignments.
There is no evidence in the record to support the contention that the Agency failed to engage Complainant in an interactive process regarding his request to telework. The record reflects that Complainant was a probationary employee that had yet to achieve production requirements, and was therefore ineligible for telework. Complainant began the process of applying for an exception to the telework guidelines, but had not completed the necessary paperwork, or supplied the necessary documentation, before he was terminated as a result of poor performance.
Because he did not establish that he was a qualified individual with a disability, Complainant was not entitled to an accommodation.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). See also 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). For Complainant to prevail, he 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability, we concur with the AJ's finding that the Agency articulated a legitimate, non-discriminatory reason for denying Complainant's request to telework, and for terminating his employment. Complainant did not complete the process of applying for an exception to the telework guidelines, which he was required to do before being allowed to telework based on his status as a probationary employee that had not met production guidelines. Complainant was ultimately terminated for failing to meet production standards. Complainant has not shown that the Agency's reasons for prohibiting him from teleworking, and ultimately terminating his employment were pretextual.
The Agency articulated legitimate, non-discriminatory business reasons for each of the actions it took. 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). We find that none exist in the instant matter.
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 he was subject to discrimination as alleged. We find that Complainant failed to establish that any conduct on the part of the Agency with respect to his accommodation requests, or his termination, was based on discriminatory animus. The AJ'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
__6/29/16________________
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.
2 This situation was resolved when the employee was provided more effective headphones.
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