0120131844
01-19-2016
Kiara R.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kiara R.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120131844
Hearing No. 451-2012-00067X
Agency No. 8Z0J11004
DECISION
Complainant timely filed an appeal from the Agency's March 14, 2013, final order concerning her 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). Upon review, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether an Equal Employment Opportunity Commission Administrative Judge's (AJ's) issuance of a Decision without a Hearing was proper; and (2) whether Complainant established discrimination on the bases of disability, religion, and/or reprisal.
BACKGROUND
During the period at issue, Complainant worked as a Medical Technician, GS-0645-06, at the Agency's Drug Testing Laboratory, Specimen Control Branch, first at Brooks City Base, then at Lackland Air Force Base, in San Antonio, Texas. In this capacity, her primary duty was processing drug testing urine samples for the Agency. This involved opening boxes containing multiple urine samples, opening specimen containers, pouring urine samples into tubes, and entering data into a computer system.
On January 11, 2011, Complainant filed an EEO complaint, which she later amended, alleging discrimination on the bases of: (1) disability (injury to right hand and wrist) when she was issued a substandard evaluation on her Civilian Progress Review (also known as mid-term feedback) on September 29, 2010, and was denied a reasonable accommodation on January 5, 2011; (2) religion (Pentecostal) upon being denied a religious accommodation when she was denied the opportunity to take her lunch break at 3:00 p.m. on February 1, 2011; and (3) reprisal (prior EEO activity) when she was denied sick leave for January 6, 2011, charged absent without leave (AWOL) for January 18-19, 2011, given a Letter of Expectations (LOE) on January 24, 2011, and received a lowered performance appraisal on June 20, 2011.
The Agency accepted the complaint for investigation and, at the conclusion thereof, provided Complainant a copy of the report of investigation (ROI) and notice of her right to request a hearing before an AJ or, alternatively, an immediate decision from the Agency based on the ROI. Complainant requested a hearing.
On May 30, 2012, the Agency filed a Motion for a Decision without a Hearing, to which Complainant responded in opposition on June 15, 2012. On January 28, 2013, the AJ assigned to the case granted the Agency's Motion and issued a decision without a hearing finding that Complainant had not established discrimination as alleged. On March 14, 2013, the Agency issued a final order adopting in full the AJ's findings. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends the AJ erred in issuing a decision without a hearing. To support this contention, Complainant states that, on January 19, 2011, she discussed her religious beliefs with her supervisor (S1), who verbally agreed to accommodate the request, in this case, to allow Complainant to take a later lunch break. See Complainant's Brief at 8. She further states that other employees routinely took lunch outside of the time period reserved for lunch.
Complainant also contends she is an individual with a disability under the Rehabilitation Act. Id. at 11. Moreover, she contends the Agency failed to engage in the interactive process to discuss a reasonable accommodation. Finally, she contends she was discriminated against on the basis of reprisal. Id. at 14.
For its part, the Agency contends Complainant's arguments on appeal are a recitation of her opposition to the Agency's Summary Judgment Motion, and that Complainant failed to further develop the record through discovery even though she was given the opportunity to do so by the AJ. See Agency's Brief at 4. The Agency closes by requesting that we affirm the AJ's Order Entering Judgment without a Hearing.
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 or reject the AJ's, and the 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 Chap. 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
Decision without a Hearing
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.
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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find the record was adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. Thus, we find the AJ's issuance of a decision without a hearing was proper.
Disparate Treatment on the Bases of Disability and Reprisal
Complainant alleges she was treated differently on the basis of disability when she received a substandard Civilian Progress Review on September 29, 2010, and on the basis of reprisal when she was denied sick leave on June 6, 2011; was charged AWOL for January 18-19, 2011; was given a LOE on January 24, 2011; and received a lowered performance appraisal on June 20, 2011.
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume, without so finding, that Complainant has established prima facie cases of disability and reprisal discrimination.
We now look to see whether the Agency stated legitimate, nondiscriminatory reasons for the actions alleged to be discriminatory. Regarding the Civilian Progress Review and Complainant's disparate treatment disability claim, the record reflects that, on most of the performance elements, Complainant was cited as needing "little or no improvement." See ROI at 55. On two of the elements, however, Complainant was rated as somewhere between needing "significant improvement" and needing "little or no improvement."2 Id. The Agency stated Complainant was given lowered marks in those areas because her supervisor (S1) had encouraged Complainant to "perform screen batch and aliquoting" duties. Id.
The Agency clarified that S1 was unaware Complainant had medical limitations which impacted her ability to perform some of her duties.3 We note that this clarification is supported by the record, as there is no evidence S1 was aware Complainant may have needed an accommodation to perform her normal duties during the relevant time period. Further, Complainant admits she did not request an accommodation until January 5, 2011, following her receipt of the Civilian Progress Review. See Complainant's Brief on Appeal at 12 (citing ROI, Complainant's Affidavit at 295).
Regarding the basis of reprisal and the remainder of Complainant's disparate treatment claims, S1 asserted that Complainant was denied sick leave on January 6, 2011, because her initial leave request was for leave without pay and had been denied due to mission requirements.4 Regarding being charged AWOL for January 18-19, 2011, the Agency asserted Complainant was charged AWOL because she did not seek leave approval in advance. The AJ noted that Complainant admitted she did not seek leave approval in advance. See Administrative Judge's January 28, 2013 Decision (AJ Decision) at 13; see also ROI at 317-19.
With respect to being issued a LOE on January 24, 2011, S1 asserted that, at the behest of the Supervisory Medical Technologist, this document was issued to all employees, not just Complainant. And finally, regarding Complainant's June 20, 2011, performance appraisal, S1 stated that Complainant was rated on four of the five performance elements.5 S1 further stated that Complainant's performance rating was based on the fact that she lagged on timely shipment of bottles-to-court and reference testing, did not immediately relay any discrepancies with test requests or with any factor involved in the completion of her workload to her supervisor or chain-of-command, and had some labeling errors which did not correspond to the correct storage box number. These explanations are sufficient to meet the Agency's burden.
Complainant must now present evidence showing that the Agency's stated reasons are pretexts based on disability and/or reprisal. Regarding Complainant's disability claim as it relates to the Civilian Progress Review, Complainant stated that the comments placed in the Review by S1 reflect poorly on Complainant because of her disability/medical condition. However, an examination of the Civilian Progress Review does not reveal a bias by S1 because of Complainant's disability/medical condition. See ROI, Complainant's Civilian Progress Review at 55. We are not persuaded by Complainant's disability evidence of pretext. Further, Complainant presented no evidence, other than her own beliefs, to demonstrate that reprisal was a factor regarding the remainder of her disparate treatment claims. Such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011).
We therefore find that Complainant has not met her burden to show the Agency's stated reasons were pretextual, and thus must also find that Complainant did not establish she was treated in a disparate manner based on disability and/or reprisal.
Disability Accommodation
Section 501 of the Rehabilitation Act, as amended, 29 U.S.C. � 791 et seq., prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide her a reasonable accommodation. We presume, without so finding, that Complainant is a qualified individual with a disability as defined by the Act.
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 (Oct. 17, 2002).
On January 4, 2011, Complainant requested a disability accommodation. She testified that she requested to "receive assistance with the portion of my job that requires me to open and dispose of boxes, and assistance with batching and pouring specimens. I indicated that I could perform the other essential functions of my positions." See ROI, Complainant's affidavit, at 295. She gave her request to the Employment Management Relations Specialist of the Civilian Personnel Element, who appears to have been the deciding official (DO) on the matter. On January 5, 2011, the DO denied Complainant's request stating, in relevant part, "we have determined ... there is no documentation in this package that indicates you are permanently restricted. Your most recent medical documentation released you without limitations." See ROI, January 5, 2011, Email from DO to Complainant at 308. In the email, the DO goes on to state, "You are welcome to stop by to pick up this documentation as you indicated that these are your original[s]. Should you feel this determination is not accurate, you may submit further medical documentation." Id. That same day, Complainant responded to the email indicating she would pick up her records the next day. Id. We note that the information given by Complainant in support of this particular disability accommodation request is not a part of the record.
Moreover, there is no evidence in the record that Complainant ever submitted additional medical documentation to substantiate this particular request. 6 Commission policy holds that when [an Agency] requests additional information based on a good-faith belief that the documentation submitted is insufficient, the employer is not liable for discrimination. See EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), response to question 11 (Jul. 27, 2000). Based on this, we find Complainant failed to establish she was denied a disability accommodation.
Religious Accommodation
Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. � 2000e(j); 29 C.F.R. � 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires an employee to demonstrate that: (1) he or she has a bona fide religious belief, the practice of which conflicted with their employment, (2) he or she informed the agency of this belief and conflict, and (3) the Agency nevertheless enforced its requirement against the employee. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).
Once an employee establishes a prima facie case, the Agency must show that it made a good faith effort to reasonably accommodate the religious beliefs and, if such proof fails, the Agency must show that the alternative means of accommodation proffered by the employee could not be granted without imposing an undue hardship on the Agency's operations. See Tiano v. Dillard Dept. Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corporation, 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989).
Here, Complainant requested that she be allowed to take her lunch break at 3:00 p.m. in order to fast. The Agency stated that this request was denied because, pursuant to the Bargaining Unit Agreement, Complainant, who reported to work at 8:00 a.m., was required to take a lunch break within the first five hours of arriving to work, in this case, by 1:00 p.m. Commission policy states that an employer is not required to violate the terms of a collective bargaining agreement in order to accommodate an employee's religious beliefs. See EEOC Compliance Manual Section 12, "Religion," No. 915.003 (Jul. 22, 2008). Based on this, we do not find the Agency in violation of its duty to accommodate Complainant's religion accommodation request. Therefore, Complainant did not establish she was denied a religious accommodation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find the AJ's issuance of a decision without a hearing was proper, and also find Complainant did not establish discrimination on the bases of disability, religion, and/or reprisal. Accordingly, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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
January 19, 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.
2 The rating system includes a section for the supervisor to indicate the level of an employee's performance by placing an "X" on a line which represents the range between needing "significant improvement" or needing "little or no improvement."
3 We note that the record contains a document dated August 26, 2010, indicating Complainant could not lift more than 30 pounds, reach, bend or stretch, and was not able to stand for more than three hours until further notice. However, that documentation was submitted as a result of an injury Complainant sustained in 2009, while on military reserve duty and in support of her request for continuation of pay due to her absence from the military reserves, not in support of any request for a disability accommodation in the workplace. See ROI, Findings and Recommendations Disposition of the Air Force Physical Evaluation Board at 320, see also ROI, Attachment No. 5 to Complainant's second-level supervisor's affidavit, at 326.
4 We note there is no evidence indicating this request was related to Complainant's need for a disability accommodation.
5 S1 stated that Complainant was not evaluated on Element 2 because she had provided medical documentation during the rating cycle which indicated she could not perform those functions.
6 We note that, on January 31, 2011, Complainant presented information from her physician to the Agency stating that Complainant could work only seven hours per day. This request involved a back injury and was approved. See ROI at 361. This accommodation is not at issue in the underlying complaint, and therefore not a part of this decision.
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