01A12679
08-22-2002
Mark Natalie, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Mark Natalie v. Department of Veterans Affairs
01A12679
August 22, 2002
.
Mark Natalie,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12679
Agency Nos. 970521, 981661, 982344, 995194
Hearing No. 320-97-8329X
DECISION
Mark Natalie (complainant) timely initiated an appeal from the agency's
final order concerning his equal employment opportunity (EEO) complaints
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 VACATES the agency's final
order.
The record reveals that complainant, a Veteran Benefits Counselor at the
agency's Regional Office in Denver, Colorado, filed formal EEO complaints
on December 14, 1996, December 27, 1997, April 20, 1998, June 4, 1998
and November 5, 1999 alleging that the agency had discriminated against
him on the basis of disability (Meniere's disease) and subjected him to
retaliation for prior EEO activity (under the Rehabilitation Act) when:
(1) it failed to provide him with a reasonable accommodation;
on May 8, 1998, the agency singled him out and treated him differently
by requiring him to provide a doctor's statement when using annual leave
in lieu of sick leave for leave taken on April 30, 1998 and May 1, 1998;
on November 20, 1997, he requested two hours of annual leave or leave
without pay (LWOP) when he became ill, but was told that he would not
be granted any type of leave without a doctor's statement;
on March 4, 1998, when he was admonished for failure to provide medical
documentation; and
he was placed on absent without leave status, which resulted in a five
day suspension for the period of August 16 - August 20, 1999.
At the conclusion of the investigations, complainant was provided
a copy of the investigative reports and requested hearings before an
EEOC Administrative Judge (AJ). The AJ consolidated the complaints and
issued a decision without a hearing on Issue 1, finding no discrimination.
In so finding, the AJ concluded that complainant failed to establish he
was substantially limited in a major life activity and therefore failed
to establish that he was an individual with a disability entitled to
a reasonable accommodation. The AJ then determined that the agency
articulated legitimate non-discriminatory reasons for its actions and
that complainant failed to show that the agency's reasons were a pretext
for discrimination. The AJ concluded that complainant failed to establish
by a preponderance of the evidence that the agency discriminated against
him on the basis of disability.
The AJ then held a hearing on complainant's other issues and determined
that complainant failed to establish by a preponderance of the evidence
that he was subjected to discrimination or retaliation. In so finding,
the AJ first reiterated his finding that complainant was not an individual
with a disability. The AJ also noted than complainant was not a qualified
individual with a disability because due to his poor attendance, he
was unable to perform the essential functions of his position. The AJ
then found that although complainant established a prima facie case of
retaliation, the agency articulated legitimate non-discriminatory reasons
for its actions. Specifically, the AJ noted that management officials
testified that they accommodated complainant when he first became ill,
but that he then failed to return to work full-time at the office, despite
orders to do so. Management officials testified that complainant failed
to provide the required medical documentation to support his absences and
that he failed to abide by the terms of his leave restriction. The AJ
concluded that complainant failed to establish that these explanations
were a pretext for retaliation.
The agency implemented the AJ's findings in full.
On appeal, complainant raises numerous contentions. He argues that the AJ
erroneously determined that there were no genuine issues of material fact
concerning Issue 1, noting that the record established that his impairment
substantially limited numerous major life activities. He argues that
had he been granted a reasonable accommodation, he would not have needed
to use the large amounts of leave he used. Complainant further argues
that the AJ should not have used the hearing to �bolster his dismissal
of the Rehabilitation Act claims.� In so arguing, complainant contends
that having determined on summary judgment that complainant was not
an individual with a disability, the AJ should not have used evidence
obtained at the hearing on the retaliation issues to support his earlier
determination that complainant was not an individual with a disability.
In response, the agency argues that the AJ's decision was correct and that
complainant failed to provide sufficient documentation to demonstrate
that he was substantially limited in a major life activity due to his
impairment. The agency argues that substantial evidence supports the
AJ's findings of fact and that the agency's adoption of the AJ's decision
should therefore be affirmed.
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 he
concluded that there was no genuine issue of material fact in regard
to Issue 1. Rather than accept complainant's evidence as true, as
an AJ is required to do when determining whether a decision without a
hearing is appropriate, the AJ disregarded most of the evidence adduced
by complainant.
For example, although the AJ determined that complainant was not an
individual with a disability and therefore not entitled to protection
under the Rehabilitation Act, the question of whether complainant's
impairment substantially limited any major life activities is in
dispute. Complainant provided numerous medical reports discussing
his impairment which his doctor diagnosed as either labyrinthitis or
Meniere's disorder. Medical documentation in the record establishes that
this impairment caused sudden dizziness, nausea, vertigo, hearing loss and
blurred vision, among other things. Moreover, complainant testified that
his impairment substantially limited numerous major life activities when
he suffered an attack and alleged that these attacks occurred several
times a day and often lasted several hours. Complainant testified
that during these attacks he was struck with incapacitating vertigo,
nausea, dizziness, blurred vision, and hearing loss, and was unable to do
anything other than lie down in a dark place. Complainant alleged that
when experiencing these daily attacks he was substantially limited in
his ability to care for himself, as well as sit, see, walk and perform
manual tasks and that he provided all of this information to the agency
when requesting a reasonable accommodation. See Knight v. United
States Postal Service, EEOC Appeal No. 01976645 (October 25, 2000)
(complainant who established that her ability to care for herself was
substantially limited by random and chronic epileptic seizures wherein
she would temporarily lose control over her physical and mental bodily
functions, was a qualified individual with a disability). The agency,
on the other hand, argued that complainant failed to provide adequate
medical documentation of his alleged disability. In making the factual
determination that complainant was not substantially limited in a major
life activity, the AJ appears to have disregarded the evidence provided by
complainant as to his limitations, as well as his claim that he provided
the same information to the agency when requesting accommodation.
Furthermore, there is a dispute as to whether complainant was able
to perform the essential functions of his position with or without
an accommodation. The parties agree that complainant was unable to
photocopy, even with a reasonable accommodation. Although the agency
argued that this was an essential function of his position, complainant,
as well as his supervisor at the time he originally requested an
accommodation (S1), testified that photocopying was not an essential
function of complainant's position as a Veterans Benefits Counselor.
In fact, S1 testified at length about the fact that complainant would
have been able to perform the essential functions of his position, if he
was provided with reasonable accommodations, such as certain equipment
and the ability to work at home. S1 also noted that before complainant
became ill, he very rarely performed photocopying duties and that it was
only after he requested accommodation that the agency began to insist
that his inability to photocopy was a problem.
We note that the hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 7, page 7-1; see also
29 C.F.R. � 1614.109(e). �Truncation of this process, while material
facts are still in dispute and the credibility of witnesses is still
ripe for challenge, improperly deprives complainant of a full and
fair investigation of her claims.� Mi S. Bang v. United States Postal
Service, EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley
v. United States Postal Service, EEOC Request No. 05950628 (October
31, 1996); Chronister v. United States Postal Service, EEOC Request
No. 05940578 (April 23, 1995). In the case at hand, there are unresolved
factual issues which require an assessment as to the credibility of
the responsible management officials, S1, and complainant, himself.
Therefore, judgment as a matter of law for the agency should not have
been granted as to Issue 1.
The AJ's finding of no discrimination on Issues 2-4 stems, in part,
from his determination that complainant was not a qualified individual
with a disability and therefore not owed a reasonable accommodation.
For example, the AJ determined that the agency articulated a legitimate
non-discriminatory reason for charging complainant AWOL when management
officials testified that they did so because complainant refused to
return to work at the facility when ordered. However, if complainant
is a qualified individual with a disability and owed a reasonable
accommodation, the agency's decision to discipline him in lieu of
providing an accommodation is not a legitimate non-discriminatory
explanation. As the issues complainant raised in his complaint are
related, it would be inappropriate to bifurcate complainant's complaint.
Accordingly, 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 VACATES 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 Denver 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
August 22, 2002
Date