01A03888
12-21-2001
Randolph S. Koch, Complainant, v. Harvey L. Pitt, Chairman, Securities and Exchange Commission, Agency.
Randolph S. Koch v. Securities and Exchange Commission
01A03888
December 21, 2001
.
Randolph S. Koch,
Complainant,
v.
Harvey L. Pitt,
Chairman,
Securities and Exchange Commission,
Agency.
Appeal No. 01A03888
Agency Nos. 28-95, 40-95, and 64-95
DECISION
INTRODUCTION
This appeal involves three separate discrimination complaints filed
by Randolph S. Koch (�complainant�) against the U.S. Securities and
Exchange Commission (�the agency�). These complaints alleged that the
agency had discriminated against complainant on the bases of his race
(White), sex (male), religion (Jewish), disability (cardiac condition),
age (over 40), and/or reprisal (for prior EEO activity) in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. (�Title VII�), the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. � 621 et seq. (�the ADEA�), and/or Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. (�the
Rehabilitation Act�).
Complainant is challenging the agency's final decision finding no
discrimination on any of the above-alleged bases. We, the U.S. Equal
Employment Opportunity Commission (�EEOC� or �the Commission�), accepted
this appeal pursuant to 29 C.F.R. � 1614.405(a). For the reasons detailed
below, we conclude that the agency's final decision should be affirmed.
ISSUE PRESENTED
Whether the agency erred in finding no discrimination with respect
to any of the allegations raised in complainant's complaints on the
grounds that he failed to establish a prima facie case of any kind of
discrimination (or, in the alternative, on the grounds that he failed to
prove by a preponderance of the evidence that the agency's legitimate,
nondiscriminatory reasons for the actions in question were a pretext
for discrimination)
BACKGROUND
At all relevant times, complainant worked at the agency's headquarters
in Washington, D.C, as a GS-12 Financial Analyst. On June 19, 1995,
complainant filed Discrimination Complaint No. 28-95 with the agency's
Office of Equal Opportunity (�OEEO�) alleging discrimination by the agency
on the bases of race, religion, disability, age, and reprisal when (1)
he received an interim performance evaluation (dated March 7, 1995)
reflecting a rating of �Fully Successful� that �failed to accurately
and properly evaluate [his] work�; (2) he received a memorandum (dated
March 20, 1995) from his supervisor requiring that he complete future
assignments in a timely manner (or risk disciplinary action); and (3) he
was denied an accommodation for his disability when the agency refused his
request for a lighter workload. See Discrimination Complaint No. 28-95
(June 19, 1995), at 1, 3-6.
Complainant filed Discrimination Complaint No. 40-95 the next day. In it,
he claimed discrimination on the bases of disability and reprisal when he
(4) was required to take annual leave each time he arrived late to work;
(5) was never informed of the availability of alternative work schedules
(and was denied compensatory or credit hours for work performed beyond
normal duty hours); (6) suffered the cancellation (by OEEO) of a grievance
he initiated regarding an annual performance evaluation; (7) was denied
official time to prepare an appeal of the agency's decision to cancel
this grievance; and (8) was questioned by his supervisor over his use
of agency property to work on EEO matters. See Discrimination Complaint
No. 40-95 (June 20, 1995), at 1, 4-5, 7.
On November 24, 1995, complainant filed Discrimination Complaint
No. 64-95. It alleged the agency had discriminated against him on
the bases of his race, religion, sex, disability, age, and reprisal
when he was (9) given a performance rating, on August 21, 1995, of
�Fully Successful,� which did �not properly reflect [the] quality or
timeliness of his work product�; and (10) subjected to undue delays
by the agency in response to his requests for information on, and an
extension in connect with, a September 1995 grievance he had filed.
See Discrimination Complaint No. 64-95 (Nov. 24, 1995), at 1, 4, 6.
On January 19, 1996, the agency sent complainant three separate
notices informing him that it was accepting (1), (2), and (9), above,
for investigation, and was rejecting all the others. See Agency's
Notice of Acceptance/Rejection of Discrimination Complaint No. 28-95
(Jan. 19, 1996); Agency's Notice of Rejection of Discrimination Complaint
No. 40-95 (Jan. 19, 1996); and Agency's Notice of Acceptance/Rejection
of Discrimination Complaint No. 64-95 (Jan. 19, 1996). The agency
told complainant that (3) was being rejected because it �appear[ed]
to be identical to an issue raised� in an earlier complaint complainant
had filed (i.e., Discrimination Complaint No. 58-94 (Oct. 14, 1994)).
See Agency's Notice of Acceptance/Rejection of Discrimination Complaint
No. 28-95 (Jan. 19, 1996), at 2. In addition, the agency told complainant
that (4), (5), (6), (7), and (8) were also being rejected for, among
other reasons, complainant's failure to raise these matters in a timely
filed complaint. See Agency's Notice of Rejection of Discrimination
Complaint No. 40-95 (Jan. 19, 1996), at 3-4. Finally, the agency told
complainant that (10) was being rejected because it failed to state
a cognizable claim. See Agency's Notice of Acceptance/Rejection of
Discrimination Complaint No. 64-95 (Jan. 19, 1996), at 2.
In a separate letter to complainant, the agency acknowledged that more
than 180 days had passed since complainant had filed Discrimination
Complaint No. 28-95. The agency then informed complainant of his right
to request a hearing before an EEOC administrative judge, and also stated
that this �decision with regard to requesting a hearing notwithstanding,�
the agency would:
continue to conduct the investigation of your complaints. While the
regulations indicate that the complainant and the Agency may voluntarily
agree to extend the 180 investigatory time period, there is no requirement
that such an agreement be entered into in order for the Agency to
continue investigating a given complaint beyond the expiration of the
180 days. As such, your testimony is scheduled for February 7, 1996,
at 10:00 a.m. . . . . [T]his office will consolidate [Discrimination
Complaint Nos. 28-95 and 64-95] for processing purposes. As such you
will be expected to testify in both complaints. If you do not appear
to provide testimony on February 7, 1996, at 10:00 a.m., your complaints
will be dismissed . . . .
Agency's Notice to Proceed in Discrimination Complaint Nos. 28-95 and
64-95 (Jan. 19, 1996), at 1-2.<1>
Complainant responded on February 7, 1996 by telling OEEO that he would
not in fact make himself available to have his testimony taken that day,
and would not aid in the agency's investigation of the relevant claims.
Complainant apparently believed the agency's OEEO should not be allowed
to investigate his complaint(s), since it had an unspecified �conflict
of interest� and had denied him �due process.� See Complainant's Letter
to Agency Refusing to Give Testimony (Feb. 7, 1996). The agency replied
on February 12, 1996, refuting these reasons for non-cooperation, giving
complainant a final warning to appear for testimony or risk dismissal of
his complaints, and rescheduling his testimony for February 27, 1996.
See Agency's 15-Day Notice to Proceed on Discrimination Complaint
Nos. 28-95 and 64-95 (Feb. 12, 1996), at 1-2.
On February 26, 1996, complainant wrote the agency reiterating his refusal
to appear to have his testimony taken, and restating his decision not
to cooperate with the investigation. He asserted that the agency's
�continued processing of this complaint past the 180-day mark without
securing my extension of such time clearly violates federal law, therefore
I reject any averment that I have been dilatory, uncooperative, or in
any other way have failed to participate properly in the administrative
process.� See Complainant's Letter to Agency Stating His Refusal to
Appear (Feb. 26, 1996), at 1-2. True to his word, complainant did not
in fact appear for the deposition scheduled for the next day.
Thereafter, on March 20, 1996, the agency dismissed (1), (2), and (9)
on the grounds that complainant's failure to cooperate could �no longer
be tolerated.� See Agency's Dismissal of Discrimination Complaint
Nos. 28-95 and 64-95 for Failure to Cooperate (Mar. 20, 1996), at 1-2;
see also Agency's Dismissal of Discrimination Complaint Nos. 28-95
and 64-95 (Feb. 27, 1996). In various appeals to this Commission,
complainant challenged this dismissal of (1), (2), and (9) for failure
to cooperate, and disputed the agency's earlier rejection of (3), (4),
(5), (6), (7), (8), and (10) on other grounds. See Complainant's
Notice of Appeal of Agency's Acceptance/Rejection of Discrimination
Complaint Nos. 28-95 and 64-95 (Feb. 6, 1996); Complainant's Notice
of Appeal of Agency's Rejection of Discrimination Complaint Nos. 28-95
and 64-95 (Feb. 21, 1996); Complainant's Notice of Appeal of Agency's
Rejection of Discrimination Complaint No. 40-95 (Feb. 21, 1996); and
Complainant's Notice of Appeal of Agency's Dismissal of Discrimination
Complaint Nos. 28-95 and 64-95 (Apr. 19, 1996).
We consolidated these appeals, and rendered a decision affirming
the agency's actions in part, and reversing them in part. See Koch
v. Securities and Exchange Commission, EEOC Appeal Nos. 01962676 and
01965642 (Mar. 6, 1997). More specifically, we ruled that the agency
never should have dismissed (1), (2), and (9) for complainant's failure
to cooperate (since complainant's refusal to aid in the investigation was
not the kind of �contumacious conduct� necessary for a valid dismissal
of any of these claims). Thus, we found (1), (2), and (9) still had to
be investigated. We then ruled that the agency should not have rejected
(3) either (as it was not, as the agency had concluded, identical to
an allegation raised in an earlier complaint). Thus, we said, (3),
too, needed to be investigated. Finally, we concluded that the agency
never should have dismissed (4), (5), (6), (7), and (8) as untimely
(since they had in fact been timely filed, contrary to the agency's
earlier contentions). However, we ruled that (6), (7), and (10) were
properly dismissed, since they constituted �an impermissible collateral
attack in the EEO process on the agency's processing of [complainant's]
grievances.� See Koch v. Securities and Exchange Commission, EEOC Appeal
Nos. 01962676 and 01965642 (Mar. 6, 1997).
Complainant requested reconsideration of this decision. We denied this
request, however, and ordered the agency to investigate the remanded
claims. We also reminded complainant that he was obligated to cooperate
with this investigation, and risked dismissal of his claims if he did
not do so. See Koch v. Securities and Exchange Commission, EEOC Request
Nos. 05970691 and 05970723 (Apr. 2, 1999).
Thereafter, the agency attempted to investigate the remanded allegations,
and sought primarily complainant's testimony. See Agency's Letter to
Complainant Regarding Investigation (Apr. 22, 1999). However, in an
email to the agency dated April 29, 1999, complainant stated:
I have just received . . . a copy of the EEOC's decision on request
for reconsideration. It states that you are ordered to conduct
an investigation, and that I am obligated to cooperate with such
investigation . . . . Unfortunately, the [OEEO] is impermissibly
conflicted out of any responsibility for conducting the investigation.
Further, the time limit for conducting the investigation long ago ran out
. . . . Quite clearly, this [EEOC Denial of Request for Reconsideration]
is an illegal decision. The EEOC should be reminded that it is obligated
to conduct itself in accordance with the law. Since it is quite clear
that [OEEO] is acting in collusion with the EEOC in violating the law,
I reject the EEOC's order and I request that you so inform the EEOC
. . . . Notwithstanding this, I will, however, agree to cooperate
with an investigation conducted by a neutral, unbiased third-party
investigator . . . . Should you insist in proceeding in this manner,
then I request an immediate decision from the agency. Even the EEOC's
order, which is illegal, discriminatory and ultra vires, clearly provides
that my request for final decision is an alternative to the order for
investigation . . . . I will not submit to an illegal order by EEOC,
which quite obviously has joined the respondent agency in prosecuting the
agency's case. I further note that my request for an immediate final
decision is made under protest against the illegal order of the EEOC,
and the obvious illegal and unethical alliance between the EEOC and the
[agency].
Complainant's Email Requesting Final Agency Decision (Apr. 29, 1999).
The agency responded by requesting additional specificity regarding
the alleged �conflict of interest� at issue. See Agency's Email
to Complainant Requesting Additional Information (May 10, 1999).
Complainant answered with a letter claiming:
the entire [OEEO] is under a conflict-of-interest. Virtually any and
every current employee � as well as some past employees � of that office
are potential witnesses. The office has had a long history of wrongdoing
and discrimination with respect to my involvement in the EEO process.
Indeed, various management officials and other employees are either
directly involved in such misconduct, or else, are at least critical
witnesses thereof. Consequently, [OEEO] cannot do any investigation of
my EEO complaints.
Complainant's Response to Agency's Request for Additional Information
(May 17, 1999), at 1.
The agency disregarded complainant's allegations of its own bias and
incompetence, and requested that complainant make himself available
for testimony on one of six suggested dates. It also requested that
complainant respond to this request by June 1, 1999. See Agency's Denial
of Complainant's Request for Independent Investigator (May 25, 1999).
In a June 2, 1999 email to the agency, complainant said that:
I fully intend to make myself available for an interview � provided it
is conducted by an individual or entity which has absolutely no interest
whatsoever in the outcome. Since so much that is to be investigated
concerns actions and events involving . . . OEEO . . . your office cannot
do an investigation. If you wish to proceed with the investigation,
then you are free to do so . . . . I restate my willingness to cooperate
vigorously and fully in a properly conducted, non-tainted investigation
. . . I reserve the right to challenge any investigation either before
an EEOC administrative judge or other forum by seeking sanctions for
failure to properly and impartially investigate on a timely basis.
Complainant's Email Requesting an Outside Investigator (June 2, 1999).
The agency ignored complainant's pleas for an independent investigator,
and finished the investigation itself (albeit without any testimony
or aid from complainant).<2> On September 2, 1999, the agency issued
its report of investigation and notified complainant of his right to
request a hearing within 30 days. See Agency's Letter Remitting Copy of
Investigative File (Sept. 2, 1999). Soon after, complainant did request
a hearing before an EEOC administrative judge. See Complainant's Request
for Administrative Judge (Oct. 4, 1999);<3> and Agency's Request for
Administrative Judge for Discrimination Complaint Nos. 28-95, 40-95, and
64-95 (Nov. 3, 1999).<4> An administrative judge (�AJ�) was appointed
to hear the matter and issued an order allowing discovery to commence.
See AJ's Acknowledgment Order and Order Regarding Discovery and Summary
Judgment (Dec. 13, 1999), at 3.
Pursuant to this order, on January 6, 2000, the agency served complainant
with various interrogatories and requests for documents and admissions.
See Agency's First Set of Interrogatories, Request for Production of
Documents and Requests for Admissions (Jan. 6, 2000). Complainant
objected to these requests as untimely made, and accused the agency
and AJ of engaging in improper ex parte contacts.<5> Complainant also
claimed the agency's discovery request was �overly broad, and states many
irrelevant requests, the volume of which is unduly burdensome and appears
intended to harass.� Complainant's Refusal to Comply with Discovery
Request (Jan. 24, 2000), at 2. The agency responded with a motion to
compel discovery. See Agency's Motion to Compel Complainant's Response
to Discovery and Extend the Deadline to Conduct Discovery and File a
Motion for Summary Judgment (Jan. 28, 2000). At that point, complainant
withdrew his hearing request and asked for a final agency decision.
See Complainant's Letter to Agency Withdrawing His Request for Hearing
(Feb. 2, 1999 [sic]).<6>
The agency issued such a decision (�FAD�) on April 10, 2000. It found
that complainant had failed to establish a prima facie case of
discrimination on any of the counts alleged (or alternatively, that he
had failed to demonstrate, by a preponderance of the evidence, that the
agency's proffered reasons for the actions at issue were a pretextual
mask for discrimination). See Agency's Final Decision (Apr. 10, 2000),
at 8-22. Complainant promptly appealed this FAD. See Complainant's
Notice of Appeal of Agency's Final Decision Dismissing Claims Raised in
Discrimination Complaint Nos. 28-95, 40-95, and 64-95 (May 10, 2000).
We accepted this appeal and docketed it as the instant appeal.
Complainant filed no statement in support of this appeal.<7> The agency
did file a brief opposing complainant's appeal, however, reiterating the
arguments on the merits it had made in its FAD. See Agency's Brief in
Opposition to Complainant's Appeal (Sept. 22, 2000).<8>
ANALYSIS AND FINDINGS
After our decisions in Koch v. Securities and Exchange Commission, EEOC
Appeal Nos. 01962676 and 01965642 (Mar. 6, 1997), aff'd, EEOC Request
Nos. 05970691 and 05970723 (Apr. 2, 1999), the agency investigated, and
ultimately adjudicated, seven of the incidents raised in Discrimination
Complaint Nos. 28-95, 40-95, and 64-95. Specifically, the agency
investigated whether it had discriminated against complainant:
(1) on the basis of reprisal when it gave him an interim performance
evaluation of �Fully Successful�;
(2) on the basis of reprisal when it issued a memorandum warning him to
turn future assignments in on time;
(3) on the bases of race, religion, disability, age, and reprisal when
the agency failed to accommodate his disability by refusing to lighten
his workload;
(4) on the bases of disability and reprisal when it required him to take
annual leave each time he arrived late to work;
(5) on the bases of disability and reprisal when it failed to inform him
of the availability of alternative work schedules (and when it denied
him compensatory and/or credit time for work performed beyond normal
duty hours);
(8) on the bases of disability and reprisal when it challenged his use
of agency property to work on EEO matters; and
(9) on the basis of reprisal when it gave him a year-end performance
rating of �Fully Successful.�<9>
However, for analytical purposes, we will group these allegations slightly
differently. To us, it appears that complainant was essentially asserting
three distinct forms of prohibited discrimination. Complainant alleged
that the agency:
(1) treated him differently than other agency employees because of
his race, religion, age, and/or disability when it refused to lighten
his workload, failed to inform him of the availability of alternative
work schedules (and denied him compensatory and/or credit time for work
performed beyond normal duty hours), and challenged his use of agency
property to work on EEO matters;
(2) retaliated against him for engaging in prior protected EEO activity
when it gave him interim and year-end performance reviews of �Fully
Successful,� issued a memorandum warning him to turn future assignments
in on time, required him to take annual leave each time he arrived
late to work, failed to inform him of the availability of alternative
work schedules (and denied him compensatory and/or credit time for work
performed beyond normal duty hours), and challenged his use of agency
property to work on EEO matters; and
(3) denied him reasonable accommodation for his disability when it refused
to lighten his workload, required him to take annual leave each time he
arrived late to work, and failed to inform him of the availability of
alternative work schedules (and denied him compensatory and/or credit
time for work performed beyond normal duty hours).
We will address these various allegations, in turn, below.
Disparate Treatment Claims
First, we address complainant's allegations that he was treated
differently because of his race, religion, age, and/or disability.
Based on the facts outlined above and raised in the record, however,
complainant has not proven unlawful disparate treatment here.
In the absence of any direct evidence of discriminatory agency animus,
claims of unlawful disparate treatment are examined under a three-part
framework first enunciated by the U.S. Supreme Court in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). 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). See 411 U.S. at 802; see also Furnco
Construction Corporation v. Waters, 438 U.S. 567 (1978). The evidentiary
burden of production then shifts to the agency to rebut the complainant's
prima facie case by articulating a legitimate, nondiscriminatory reason
for the agency's actions. See Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has done so,
the burden of production shifts back to complainant to show that the
agency's articulated reason is pretextual (that is, it was not the true
reason or the action was influenced by legally impermissible criteria).
450 U.S. at 253. However, while the evidentiary burden of production may
shift throughout this three part analysis, complainant always retains
the burden of persuading the fact finder by a preponderance of the
evidence that the agency intentionally discriminated against complainant.
See Reeves v. Sanderson Plumbing Product Inc., 530 U.S. 133, 143 (2000)
(quoting Burdine, 450 U.S. at 253).
After considering the record of investigation in its entirety, we have
concluded that complainant has failed even to make out a prima facie
case of discrimination on any basis � much less prove by a preponderance
of the evidence that there was a nefarious agency motive at work here.
Other than the bare conclusory claims raised in his initial complaints,
complainant has produced no evidence whatever suggesting that his race,
religion, age, and/or alleged disability had anything at all to do with
the agency's failure to lighten his workload or tell him about alternative
work schedules, its refusal to allow him credit and/or compensatory
time, and/or its challenging his use of agency property for EEO matters.
Therefore, given the record before us � a record which unfortunately
does not contain testimony or any statement in support of appeal from
complainant � we simply cannot conclude that it is more likely than not
that the agency treated him disparately. We certainly cannot conclude
that it did so for any reason prohibited under Title VII, the ADEA,
or the Rehabilitation Act.
Reprisal Claims
Next we examine complainant's allegations of unlawful reprisal.
According to the relevant rules, no federal employee �shall be subject
to retaliation for opposing any practice made unlawful� by Title VII,
the ADEA, or the Rehabilitation Act, or �for participating in any stage
of administrative or judicial proceedings under those statutes.� 29
C.F.R. � 1614.101(b). As this Commission has noted:
Voluntary compliance with and effective enforcement of the
anti-discrimination statutes depend in large part on the initiative
of individuals to oppose employment practices that they reasonably
believe to be unlawful, and to file [complaints] of discrimination.
If retaliation for such activities were permitted to go unremedied, it
would have a chilling effect upon the willingness of individuals to speak
out against employment discrimination or to participate in the EEOC's
administrative process or other employment discrimination proceedings.
EEOC Compliance Manual (rev. May 20, 1998), at 8-1 - 8-2. Accordingly,
this �protection for participation in EEO proceedings and opposition
to unlawful employment practices is broad in scope and should be
interpreted liberally in its application if employees are to exercise
their right to a workplace free from discrimination.� Ernest C. Hadley,
A Guide to Federal Sector Equal Employment Law and Practice, at (2001),
at 1177. Our proclivity for generous dispensation of reprisal protection
notwithstanding, however, complainant's retaliation claims fall short
here.
As in disparate treatment cases, to prove retaliation discrimination,
a complainant must first establish a prima facie case of reprisal.
Once the complainant has done so, the burden of production shifts, and
the agency must provide a legitimate, nondiscriminatory reason for its
actions. The burden of production then returns to the complainant to
show that the agency's stated reason was a pretext for discrimination.
Although the burden of production may shift, the burden of persuading
the trier-of-fact, by a preponderance of the evidence, that the agency's
actions constituted reprisal discrimination remains on the complainant
at all times. See, e.g., Raju v. Department of Veterans Affairs, EEOC
Appeal No. 01986574 (Nov. 2, 2001); Meek v. United States Postal Service,
EEOC Appeal No. 01991240 (Oct. 25, 2001); Ferrall v. Department of the
Navy, EEOC Appeal No. 01994603 (Oct. 17, 2001); Huspek v. United States
Postal Service, EEOC Appeal No. 01974768 (Aug. 23, 2001); and EEO-MD-110,
at Appendix L-4.
A complainant can establish a prima facie case of retaliation by
presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. See Palmer v. United States Postal Service,
EEOC Appeal No. 01982297 (Nov. 1, 2001) (citing Shapiro v. Social
Security Administration, EEOC Request No. 05960403 (Dec. 6, 1996)).
Specifically, in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas Corp., Hochstadt v. Worcester Foundation
for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs,
EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish
a prima facie case of reprisal by showing that (1) he engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. See, e.g., Bodack v. United States Postal Service, EEOC
Appeal No. 01980949 (Oct. 5, 2001) (citing Fabish v. United States Postal
Service, EEOC Appeal No. 01981273 (June 1, 2001)); Panlilio v. Department
of Defense, EEOC Appeal No. 01A10698 (Jul. 27, 2001) (citing Whitmire
v. Department of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25,
2000)); Peace-Jackson v. Department of Labor, EEOC Appeal No. 01980251
(June 28, 2001); and EEO-MD-110, at Appendix L-4.
Here, we will assume, if only for the sake of argument, that this
complainant has established a prima facie case of retaliation.
For example, it appears complainant believes the agency retaliated
against him for filing earlier EEO complaints (e.g., Discrimination
Complaint No. 58-94 (Oct. 14, 1994)) and for generally participating in
the EEO process. See, e.g., Discrimination Complaint No. 28-95 (June
19, 1995), at 6; Discrimination Complaint No. 40-95 (June 20, 1995),
at 5-6; and Discrimination Complaint No. 64-95 (Nov. 24, 1995), at 7.
This is unquestionably activity protected from any agency reprisal.
See, e.g., Cobb v. Department of the Treasury, EEOC Appeal No. 01972195
(July 20, 2001) (involving the filing of a prior EEO complaint that
precipitated reprisal); cf. Hashimoto v. Dalton, 118 F.3d 671, 680
(9th Cir. 1997) (noting that once an employee in the federal sector has
initiated contact with an EEO counselor, (s)he has engaged in protected
activity). In addition, agency officials were undoubtedly aware that
complainant had filed EEO complaints in the past. See, e.g., Record
of Investigation (Sept. 2, 1999), at 10, 13, 17, 18 (indicating that
complainant's first-line supervisor was aware of prior EEO activity by
complainant before taking the adverse actions at issue); and Transcript
of Testimony of Complainant's Supervisor (June 24, 1999), at 8 (in which
the supervisor conceded that he knew the complainant had filed �several
complaints� before). Thus, the first and second prongs of a reprisal
prima facie case have been met.
Moreover, we will presume that the agency treated complainant adversely
when it gave him interim and year-end performance reviews of �Fully
Successful,� when it issued a memorandum warning him to turn future
assignments in on time, when it required him to take annual leave
each time he arrived late to work, when it failed to inform him of
the availability of alternative work schedules, and when it challenged
his use of agency property to work on EEO matters. See, e.g., Schiche
v. Department of the Interior, EEOC Appeal No. 01992469 (July 18, 2001)
(noting that �[t]he Commission's policy on retaliation prohibits any
adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in a protected
activity�); and EEOC Compliance Manual (rev. May 20, 1998), at 8-13
� 8-14 (confirming that, while �petty slights and trivial annoyances
are not actionable,� the agency behavior at issue need not rise to the
level of an ultimate employment action � or even materially affect the
terms or conditions of employment � to constitute �adverse treatment� for
reprisal purposes). We will also presume that complainant can establish
the requisite nexus between this adverse treatment and his participation
in prior protected activity. All of the alleged retaliatory actions were
taken after complainant's EEO activity (e.g., Discrimination Complaint
No. 58-94 was filed on October 14, 1994, and the ostensible reprisal all
occurred within the next year). Cf. Grant v. Department of Treasury, EEOC
Appeal No. 01985972 (Aug. 2, 2001) (noting that �the causal connection
[between the protected activity and the adverse action] may be shown
by evidence that the adverse action followed the protected activity
within such a period of time and in such a manner that a reprisal motive
is inferred�). In addition, there is some evidence suggesting certain
agency officials were upset upon learning of complainant's EEO activity.
See, e.g., EEO Counselor's Report on Discrimination Complaint No. 28-95
(Mar. 14, 1995), at 2 (in which the EEO counselor characterized one senior
agency official as �quite angry� over complainants EEO allegations); and
EEO Counselor's Report on Discrimination Complaint No. 64-95 (Sept. 20,
1995), at 2 (noting that complainant �sensed hostility� from a senior
agency officials �as a result of his initiation of [the] EEO process�).
Thus, the third and fourth prongs of the retaliation prima facie case
have arguably been satisfied.
However, even assuming arguendo that complainant has established a
prima facie case of reprisal, we find that the agency has articulated
legitimate, non-discriminatory reasons to rebut this inference of
retaliation. For example, with respect to the March 1995 interim
performance review of �Fully Successful,� complainant's first line
supervisor believed the evaluation accurately and fairly reflected
complainant's performance for the covered rating period, especially given
complainant's need to improve several areas of his performance (e.g.,
timeliness of completing certain assignments, organization of work load,
etc.) See Agency's Final Decision (Apr. 10, 2000), at 8-9; Agency's Brief
in Opposition to Complainant's Appeal (Sept. 22, 2000), at 9-10; Record
of Investigation (Sept. 2, 1999), at 8-9; and Transcript of Testimony
of Complainant's Supervisor (June 24, 1999), at 14 - 16. Similarly,
the first line supervisor testified that the August 1995 year-end rating
of �Fully Successful� was also based solely on complainant's performance
(and that to achieve a higher ranking, complainant �would have had to
improve the timeliness of his reviews a lot more and to some extent,
maybe improve the quality of his reviews.�) See Agency's Final Decision
(Apr. 10, 2000), at 15; Agency's Brief in Opposition to Complainant's
Appeal (Sept. 22, 2000), at 16; Record of Investigation (Sept. 2, 1999),
at 19; and Transcript of Testimony of Complainant's Supervisor (June 24,
1999), at 43.<10>
As for the March 1995 memorandum requiring complainant to turn future
assignments in on time, complainant's supervisor asserted that this
memo was issued only after complainant himself had sent the supervisor
insubordinate emails refusing to comply with managerial directives
complainant considered �unreasonable or excessive.� See, e.g.,
Complainant's Email to Supervisor (Mar. 9, 1995). The memo in question
reminded complainant of his obligation to complete work assignments in
accordance with the requirements established by his supervisors, or risk
disciplinary action. See Agency's Final Decision (Apr. 10, 2000), at 9;
Agency's Brief in Opposition to Complainant's Appeal (Sept. 22, 2000),
at 10; Record of Investigation (Sept. 2, 1999), at 10; and Transcript of
Testimony of Complainant's Supervisor (June 24, 1999), at 17-18.<11> On
the issue of requiring the complainant to take annual leave for arriving
late to work, the supervisor said that complainant's official duty hours
were 9:00 a.m. to 5:30 p.m., and that complainant would often arrive late
(sometimes as late as 10:30 a.m.) four or five days a week. Because no
one else arrived at late as frequently as the complainant, the supervisor
apparently felt the need to enforce the agency's policy of charging leave
for such unexcused and persistent tardiness. See Agency's Final Decision
(Apr. 10, 2000), at 11-12; Agency's Brief in Opposition to Complainant's
Appeal (Sept. 22, 2000), at 12-13; Record of Investigation (Sept. 2,
1999), at 13; and Transcript of Testimony of Complainant's Supervisor
(June 24, 1999), at 24-26.
With respect to the failure to inform complainant of the availability
of alternative work schedules, complainant's supervisor stated that
agency-wide memoranda on the subject had been disseminated, and that
he did not think supervisors were ever required to notify personally
those under their supervision about the matter. The supervisor also
testified that at some point he did specifically remind complainant
about the availability of an alternative work schedule and of the
need to follow proper procedures to officially request such a changed
schedule. See, e.g., Email from Supervisor to Complainant (May 26,
1995); see also Complainant's Response to Supervisor's Email (May 26,
1995) (in which complainant acknowledged an email from his supervisor
reminding him of the availability of alternative work schedules,
and in which complainant said he would �consult with alternative work
schedule requirements and submit a request�). As for the denial of
compensatory or credit hours, the supervisor claimed that he only
ever denied complainant such time when complainant failed to follow
agency policy by requesting compensatory or credit time in advance.
See, e.g., Email from Supervisor to Complainant Denying Credit Hours
(May 24, 1995); see also Agency's Final Decision (Apr. 10, 2000), at
12-14; Agency's Brief in Opposition to Complainant's Appeal (Sept. 22,
2000), at 13-15; Record of Investigation (Sept. 2, 1999), at 14-17; and
Transcript of Testimony of Complainant's Supervisor (June 24, 1999),
at 27-36. Finally, with regard to questioning complainant's use of
agency property (such as computers and copying machines) to work on
EEO matters, complainant's supervisor testified that he had thought
agency policy prohibited the use of such governmental equipment for
personal business, that he then checked with OEEO and discovered he
had been wrong (i.e., that agency policy did allow for employee use of
governmental property for EEO matters as long as advanced supervisory
approval was secured), and that he never again challenged such use.
See Agency's Final Decision (Apr. 10, 2000), at 14-15; Agency's Brief
in Opposition to Complainant's Appeal (Sept. 22, 2000), at 15-16; Record
of Investigation (Sept. 2, 1999), at 17-18; Transcript of Testimony of
Complainant's Supervisor (June 24, 1999), at 36-40; and Declaration of
Agency EEO Official (May 12, 1996), at 2.
In short, at least according to the agency, retaliatory animus played no
part whatever in any of the adverse actions taken. Given the legitimate,
nondiscriminatory reasons proffered to explain such agency behavior,
complainant can only prevail if he can show that these reasons are
mere pretext masking a true retaliatory motive. The complainant has
not met this burden. After scouring the record for additional proof
of retaliatory motive here, we believe that the preponderance of the
evidence simply does not support any finding of pretext. Thus, we find
that the agency did not improperly retaliate against complainant with
respect to any of the incidents alleged in the complaints at issue.<12>
Reasonable Accommodation Claims
Finally, we come to complainant's claims that the agency failed to provide
him with a reasonable accommodation for his purported disability when it
refused to lighten his workload, required him to take annual leave each
time he arrived late to work, and failed to inform him of the availability
of alternative work schedules (and denied him compensatory and/or credit
time for work performed beyond normal duty hours). According to the
Commission's regulations:
An Agency shall make reasonable accommodation to the known physical
or mental limitations of an applicant or employee who is a qualified
individual with [a disability] unless the agency can demonstrate that
the accommodation would impose an undue hardship on the operation of its
program . . . . Reasonable accommodation may include, but shall not be
limited to: (i) Making facilities readily accessible to and usable by
individuals with [disabilities]; and (ii) Job restructuring, part-time
or modified work schedules, acquisition or modification of equipment
or devices, appropriate adjustment or modification of examinations,
the provision of readers and interpreters, and other similar actions.
29 C.F.R. �� 1614.203(c)(1), (2).
We will assume arguendo that complainant is a �qualified individual with
a disability� for these purposes<13> (though we specifically decline
to analyze and rule specifically on whether in fact he actually is).
However, we must also assume � given the facts at hand � that complainant
knowingly failed to cooperate with the agency's numerous requests for
information about his alleged disability and the need to accommodate it.
This refusal to engage the agency in a critical �interactive process�
precludes complainant from prevailing on his reasonable accommodation
claims here.
Complainant did make clear and continual requests for accommodations
of his alleged cardiac condition. From the record, it appears that he
had asked, at various times and in various ways, for his workload to be
reduced, his tardy arrivals to be excused, and/or his schedule to be made
more flexible. See, e.g., Complainant's Email to Supervisor (Sept. 2,
1994) (where complainant claims the agency had �been well on notice for
over two years that I have a disabling medical condition that requires
accommodation and flexibility in my hours. This means, of course,
a reasonable work load and flexible duty hours.�); Discrimination
Complaint No. 58-94 (Oct. 14, 1994), at 1-2 (where complainant
alleged that �[e]xcessive workload and unreasonable deadlines have
aggravated a medically disabling condition�); Complainant's Email
Requesting Accommodation (May 26, 1995) (in which he stated �[m]y
medical condition precludes rushing in the morning; rather I must
prepare slowly for any and all activity, particularly in the several
hours after arising. I have long noticed that my cardiac symptoms
are most obvious and severe in the several hours after arising, and I
am most at risk from a severe and dangerous cardiac event in the 3-4
hours after arising . . . . If you wish to discuss, in good faith, an
amelioration of inflexible duty hours (which place me at greater risk)
and establishment of greater schedule flexibility � which I have been
requesting all along under the Rehabilitation Act � I will do so . . . .
[I]f my health requires modest lateness, I will continue to do so.
If you insist on leave, instead of offering a meaningful accommodation,
I will challenge that legally . . . .); and Transcript of Testimony of
Complainant's Supervisor (June 24, 1999), at 11 (in which complainant's
supervisor conceded complainant �made several claims about being disabled
and asked for some accommodations because of disability�).
Beyond these bare assertions, however, complainant refused to provide
specific information about the precise nature of his medical condition
and/or the exact accommodation it necessitated. This is so, despite
repeated attempts by the agency to extract this critical information.
For example, in a letter dated May 26, 1994 from complainant's supervisor
to complainant, the supervisor noted:
Recently, you indicated that you may be experiencing a medical condition
that prevents you from performing the full range of your assigned duties
. . . . As your employer, the Federal Government has an obligation to
provide a reasonable accommodation of your medical condition . . . .
In order to evaluate completely what that accommodation may be, I an
[sic] requesting that you have your physician provide detailed answers to
[various] questions<14> . . . .Upon receipt of your physician's responses
to the[se] questions . . . I, in conjunction with others on the staff
of the [agency], will assess their impact on your current position and
determine the extent, if any, an accommodation may be provided to you.
Letter from Supervisor to Complainant Requesting Information on
Complainant's Medical Condition (May 26, 1994), at 1-2.
Complainant's doctor did respond to this initial request for information.
In a letter to the agency dated June 20, 1994, the doctor explained that:
I have followed [complainant] for cardiovascular disorders since
November 24, 1992. His cardiac history dates to December, 1990, when he
suffered an acute inferior wall myocardial infarction . . . . He was
treated medically, entered cardiac rehabilitation, and did quite well,
exercising regularly and losing a significant amount of weight. He has
been clinically stable without recurrence of symptoms, but has several
important cardiovascular risk factors which have been increasingly
difficult to control . . . .
I am concerned that if his risk factors are not adequately addressed
he will be at a high risk for recurrent cardiac events in the future.
We have attempted to aggressively address his risk factors. I have
advised [complainant] to reenter a formal cardiac rehabilitation program,
since I think this would help him address many of his risk factors.
Unfortunately his workload is apparently quite demanding and the work
hours which he must keep have precluded this to this point.
While I believe that [complainant] is fully capable of handling a normal
workload and other related responsibilities, I believe his work should
be limited to 40 hours per week. During this period, overall work
demand should be moderate. Work beyond 40 hours may be possible on
occasion but should not become routine. I believe that his schedule
should allow adequate time to participate in a medically-supervised
cardiac rehabilitation program, where [he] will be able to address his
risk factors and reduce the impact of work related stress. Accordingly,
his work schedule may need to be more flexible.
Letter from Complainant's Doctor to Agency (June 20, 1994), at 1-2.
Complainant's supervisor subsequently requested clarification and
additional information from this doctor. The supervisor wrote:
Contrary to your belief regarding [complainant's] �quite demanding�
workload, [his] schedule is 9:00 a.m. to 5:30 p.m., Monday through
Friday, and, therefore, is consistent with your recommended 40 hours
per week limitation. When [he] works beyond his scheduled tour of duty,
it is usually at his own request. Enclosed are copies of [complainant's]
position description . . . and the job elements and performance standards
for his position. The job is predominantly sedentary and, on average,
[his] workload is no more nor less than the workload for anyone else in
[his] office.
In your letter you state that you have advised [complainant] to enter a
formal cardiac rehabilitation program. It would be helpful if you would
provide me with information as to what such a program would involve and
what you believe would be the required adjustment, if any, to [his]
current 40 hours per week work schedule if he were to participate.
Please note that the Commission has a health unit and a fitness center
on site that might be utilized as part of [his] rehabilitation program.
Further, in light of [complainant's] duties, please provide a narrative
explanation of the medical basis for any conclusions that duty
restrictions or accommodations are (or are not) warranted.
Letter from Supervisor to Complainant's Doctor (August 16, 1994), at 1.
The doctor never answered this request for more information. See
Transcript of Testimony of Complainant's Supervisor (June 24, 1999), at 21
(where complainant's supervisors alleges that �I never received a response
to the August 16th, 1994 letter�). And despite repeated follow-up
attempts by the agency prodding complainant to provide clarifying detail
and/or to follow procedures for requesting accommodation, complainant
refused to do so. See, e.g., Memorandum from Supervisor to Complainant
(Sept. 2, 1994), at 1-2 (where the supervisor said to complainant �you
state again that you have a disabling medical condition that requires
accommodation and flexibility in your hours (i.e., flexible duty hours and
reasonable workload). I have repeatedly asked you to submit a written
request for a change of work hours. However, to date you have failed
to give me such a request . . . . If you will be specific as to what
accommodation is required . . . I will consider it.�); and Memorandum from
Supervisor to Complainant (Mar. 20, 1995) (where complainant's supervisor
told complainant that �if you are requesting an adjustment to your
workload and/or work schedule due to medical reasons, you must provide
the appropriate medical documentation to support such a request. In this
regard, I note that I have not received a reply from [your doctor] to
my letter dated August 16, 1994 concerning your medical condition.�).<15>
From these facts, it is clear that the agency tried time and again
to involve complainant in an interactive process designed to identify
the nature of the disability in question and the action(s) necessary
to accommodate it. This was altogether necessary and appropriate.
In this Commission's policy guidance, we have explained that:
The employer and the individual with a disability should engage in an
informal process to clarify what the individual needs and identify the
appropriate reasonable accommodation. The employer may ask the individual
relevant questions that will enable it to make an informed decision about
the request. This includes asking what type of reasonable accommodation
is needed.
EEOC's Enforcement Guidance: Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act (Mar. 1, 1999), at Answer to
Question 5.
Similarly, we have said that the:
. . . request for reasonable accommodation is the first step in an
informal, interactive process between the individual and the employer.
In some instances, before addressing the merits of the accommodation
request, the employer needs to determine if the individual's medical
condition meets the . . . definition of �disability,� a prerequisite
for the individual to be entitled to a reasonable accommodation.
Id. at Answer to Question 1.
Therefore, it was actually complainant's own failure to cooperate in this
process that rendered the agency unable to reasonably accommodate him.
Complainant should not now be allowed to blame the agency for this
end result he himself effected. We certainly will not hold the agency
accountable for this outcome either.<16> As we have noted before,
in terms that could not be clearer:
The employer is entitled to know that the individual has a covered
disability for which s/he needs a reasonable accommodation . . . .
If an individual's disability or need for reasonable accommodation is
not obvious, and s/he refuses to provide the reasonable documentation
requested by the employer, then s/he is not entitled to reasonable
accommodation.
EEOC's Enforcement Guidance: Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act (Mar. 1, 1999), at Answer to
Question 6; see also EEOC's Policy Guidance on Executive Order 13164:
Establishing Procedures to Facilitate the Provision of Reasonable
Accommodation (Oct. 20, 2000), at II.D., Answers to Questions 16, 17
(providing that �[a]n agency is entitled to know that an employee
or applicant has a covered disability that requires a reasonable
accommodation. Thus, when a disability and/or need for accommodation is
not obvious, the agency may, if it chooses, require that the individual
provide reasonable documentation about the disability and his/her
functional limitations. Additionally, the agency may request supplemental
documentation when the information already submitted is insufficient to
document the disability and/or the functional limitations it . . . . [T]he
failure to provide necessary documentation where it has been properly
requested could result in a denial of reasonable accommodation.)
CONCLUSION
For all the above-detailed reasons, we conclude that there was no
discrimination on any basis committed in this case, and that the agency's
final decision finding no discrimination with respect to the remaining
allegations in Discrimination Complaint Nos. 28-95, 40-95, and 64-95
should be affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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 (S0900)
Complainant has the right to file a civil action in an appropriate
United States District Court within ninety (90) calendar days from the
date that complainant receives this decision. If complainant files a
civil action, complainant 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 complainant's case in court. �Agency� or
�department� means the national organization, and not the local office,
facility or department in which complainant works. If complainant files
a request to reconsider and also files a civil action, filing a civil
action will terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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 21, 2001
__________________
Date
1This was not the first time the agency had attempted to schedule
complainant's testimony. Complainant's testimony was first slotted for
December 14, 1995. See Agency's Scheduling of Complainant's Testimony
(Dec. 7, 1995). Complainant claimed he was ill, however, and could
not attend this deposition. See Complainant's Letter Informing Agency
of Illness (Dec. 13, 1995). The agency rescheduled the testimony for
January 9, 1996. This deposition did not happen either, since all Federal
Government Offices in the area were closed that day due to inclement
weather. See Agency's Notice to Proceed in Discrimination Complaint
Nos. 28-95 and 64-95 (Jan. 19, 1996), at 2 note 2. The deposition was
then rescheduled again, this time for January 23, 1996. See Agency's
Scheduling of Complainant's Testimony (Jan. 11, 1996), at 1. On January
19, 1996, however, complainant sent OEEO a letter expressing concerns
about the processing of his complaints (specifically, the agency's failure
to complete the relevant investigation within 180 days and/or to secure
complainant's agreement to an extension of this investigatory period).
Complainant thus refused to appear for the testimony scheduled for
January 23, 1996 unless the agency agreed to let an independent third
party conduct the investigation. See Complainant's Notice of Refusal
to Attend Deposition (Jan. 19, 1996), at 1-2. This led to the agency's
reply demanding that complainant appear for testimony by February 7, 1996.
See Agency's Notice to Proceed in Discrimination Complaint Nos. 28-95
and 64-95 (Jan. 19, 1996).
2The agency did take the deposition of complainant's first-line
supervisor. See Transcript of Testimony of Complainant's Supervisor
(June 24, 1999).
3Complainant actually claimed that the agency's letter notifying him
of his obligation to request a hearing within 30 days �is erroneous.
I requested a hearing in connection with [Discrimination Complaint
Nos. 28-95, 40-95, and 64-95] some three years ago, as I recall.
The EEOC's order only goes to investigation � it did not abrogate a
previous request for hearing. Further, there was no action removing this
from the jurisdiction of the Washington Regional Office of the EEOC or
the administrative judge. Therefore, there is no need for me to request
a hearing again . . . . Please proceed accordingly.� Complainant's
Request for Administrative Judge (Oct. 4, 1999). It appears that
complainant had, in fact, requested a hearing previously (on March 24,
1997). See Complainant's Request for Hearing (Mar. 24, 1997) (where he
stated �[p]ursuant to the order issued on March 6, 1997 by the Office of
Federal Operations, Equal Employment Opportunity Commission, I request a
hearing before an EEOC Administrative Law Judge on the remanded issues�).
The agency had forwarded this request to the EEOC. See Agency's Request
for Assignment of Administrative Judge for Discrimination Complaint
Nos. 28-95, 40-95, and 64-95 (Apr. 7, 1997).
4In forwarding complainant's renewed request for a hearing to EEOC,
the agency noted that the agency had �initially dismissed many of
Complainant's allegations, and Complainant appealed. The EEOC partially
reversed the [agency's] dismissal, and advised Complainant of his right
to request a hearing on the remanded issues. Complainant submitted
a written request for a hearing, which [the former director of OEEO]
forwarded to [the Washington Field Office] on April 7, 1997.� Agency's
Letter to EEOC Washington Field Office (Nov. 3, 1999), at 1-2.
5For example, in one email, complainant pointed out that soon after
the agency sent complainant an email responding to his objections to
the agency's discovery request, AJ also sent an email to complainant
on the same matter. To complainant, this proximity in time between
the agency's and AJ's emails to complainant suggested improper ex parte
collusion between them. See Complainant's Email to Agency (Jan. 27, 2000)
(stating that �I can only assume . . . that you are closely in touch with
[AJ] and are, as I expected and based on past experience, engaging in
illegal and unethical ex parte contacts with [AJ],� and demanding that
agency personnel and AJ identify all jurisdictions in which they are
admitted to practice law).
6 The agency then notified AJ that complainant had withdrawn his hearing
request. See Agency's Notice of Withdrawal of Hearing Request (Feb. 3,
2000). AJ, in turn, notified the agency that it would be terminating
processing of these complaints. See AJ's Acknowledgment of Withdrawal
of Hearing Request (Feb. 7, 2000).
7This is so, despite complainant's request for, and our grant of, at
least one extension of time for filing such a brief. See Complainant's
Request for Extension of Time to File Statement in Support of Appeal
(June 9, 2000) (requesting an extension due to a �medical condition�
that prevented him from filing the brief on time); and EEOC's Letter
Granting Complainant's Request for Extension of Time (June 14, 2000).
8We also gave the agency, at the agency's request, an extension of time
to file its statement in support of appeal. See EEOC's Letter Granting
Agency's Request for Extension of Time (Aug. 10, 2000); see also Agency's
Request for Extension of Time to File Statement in Opposition to Appeal
(Aug. 8, 2000) (claiming that complainant's many prior, and imprecise,
requests for extensions in a multitude of complaints before the agency,
and his failure to file pleadings on time even after such extensions
had been granted, had caused �confusion� within the agency and hampered
its ability to file its own brief opposing the instant appeal on time);
cf. Complainant's General Request for Extensions (Jul. 12, 2000) (in
which the complainant requested extensions for three unspecified appeals.
He stated that �all the documents relating to these appeals are missing,
and presumably lost, as the result of a home move which I completed
last week,� and that �[u]nfortunately, since I don't have the records,
I cannot provide you with the [agency] case numbers at this time . . . .�)
9It does not appear from the record that the agency (after our decisions
in Koch v. Securities and Exchange Commission, EEOC Appeal Nos. 01962676
and 01965642, aff'd, EEOC Request Nos. 05970691 and 05970723), ever
explained to complainant that it was proceeding to investigate these exact
issues or bases of discrimination. We know that these are the issues
and bases investigated by the agency because we have gleaned this list
from its record of investigation and subsequent pleadings. See Record of
Investigation (Sept. 2, 1999), at 6-7; Agency's Final Decision (Apr. 10,
2000), at 5-6; and Agency's Brief in Opposition to Complainant's Appeal
(Sept. 22, 2000), at 5-6. We assume complainant did the same.
We note that the bases of discrimination alleged in this list � and
thus, those presumably investigated � do not match precisely the
bases originally alleged by complainant in the relevant complaints
(or in subsequent EEO counselor reports, for that matter). See, e.g.,
Discrimination Complaint No. 64-95 (Nov. 24, 1995), at 1 (in which the
complainant listed race, religion, sex, disability, age, and reprisal
as bases for discrimination in (9), above (whereas the agency only
investigated reprisal as the underlying basis for the unlawful act at
issue)); and EEO Counselor Report on Discrimination Complaint No. 40-95
(Apr. 13, 1995), at 1 (in which the counselor listed race, disability,
religion, age, and reprisal as the bases of discrimination with respect
to (4), (5), and (8), above (whereas the agency only investigated
disability and reprisal as the underlying bases for the unlawful acts
at issue)). Nevertheless, because there is nothing in the record before
us suggesting that complainant ever disputed the agency's formulations
of his remanded claims (even after reading the record of investigation,
reviewing the agency's final decision, and receiving the agency's brief
opposing the instant appeal), we refuse to do so on appeal. As will
become apparent, below, complainant cannot prove discrimination on any
basis here in any event (and the agency's alteration of complainant's
initial alleged bases would thus be harmless error).
10Complainant's second-line supervisor concurred. See Memorandum from
Second-Line Supervisor to Complainant (Sept. 15, 1995), at 2 (stating
that the �written evaluation for the period [in question] is, in my view,
an accurate measure of your performance. You have presented nothing to
negate the description of your actual performance as described in the
written evaluation or to show that your performance supports a higher
rating than �Fully Successful.�)
11The March memorandum also informed complainant that if he was asking
or requesting an adjustment to his workload and/or schedule for medical
reasons, he should provide appropriate documentation to support such a
request. See Transcript of Testimony of Complainant's Supervisor (June
24, 1999), at 18; see also the discussion on complainant's reasonable
accommodations claims, below.
12We also find that, insofar as complainant contends that the incidents
of which he complained constituted harassment based upon his membership
in protected classes, since he failed to refute the legitimate,
nondiscriminatory reasons proffered by the agency for its actions, he
also failed to establish that such actions were taken on the basis of his
membership in any protected classes. Accordingly, complainant failed to
establish that he was subjected to prohibited harassment. See Bennett
v. Department of the Navy, EEOC Request No. 05980746 (Sept. 19, 2000);
and Wolf v. United States Postal Service, EEOC Appeal No. 01961559
(Jul. 23, 1998).
13A �qualified individual with a disability� is an �individual with a
disability� who, with or without reasonable accommodation, can perform the
essential functions of the position in question without endangering the
health and safety of the individual or others and who, either (1) meets
the experience or education requirements of the position in question;
or (2) meets the criteria for appointment under one of the special
appointing authorities for individuals with disabilities. 29 C.F.R. �
1614.203(a)(6). An �individual with a disability,� in turn, is one
who (1) has a physical or mental impairment which substantially limits
one or more of such person's major life activities; (2) has a record
of such impairment; or (3) is regarded as having such an impairment.
See 29 C.F.R. � 1614.203(a)(1). A �physical or mental impairment� could
be (1) any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of various body systems (e.g.,
neurological, musculoskeletal, special sense organs, cardiovascular,
reproductive, digestive, respiratory, genitourinary, hemic and lymphatic,
skin, and endocrine); or (2) any mental or psychological disorder, such as
mental retardation, organic brain syndrome, emotional or mental illness,
and specific learning disabilities. See 29 C.F.R. � 1614.203(a)(2).
�Major life activities� include functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. See 29 C.F.R. � 1614.203(a)(3).
14These questions included (1) the history of the specific medical
condition; (2) clinical findings from the most recent medical evaluation
(e.g., findings of physical examination, results of laboratory tests,
x-ays, EKGs, etc.); (3) assessment of the current clinical status
and plans for future treatment; (4) diagnosis; (5) an estimate of the
expected date of full or partial recovery; (6) an explanation of the
impact of the medical condition on life activities both on and off the
job; (7) assessment of the degree to which the medical condition has or
has not become static or stabilized; (8) the likelihood that complainant
will suffer sudden or subtle incapacitation associated with the medical
condition; (9) the probability that he will suffer injury or harm if not
granted an accommodation; and (10) the medical basis for the doctor's
decision to recommend or not to recommend restrictions that prohibit
complainant from performing specific duties of his position or attending
work altogether. See Letter from Supervisor to Complainant Requesting
Information on Complainant's Medical Condition (May 26, 1994), at 1-2.
15See also Email Response from Supervisor to Complainant's Request for
Accommodation (May 26, 1995) (in which the supervisor said �I understand
that you may have a medical condition which may require an accommodation.
When you first advised me 2-3 years ago that you might need a change of
hours for medical reasons, I advised you to send me a memorandum to the
Division Director via [your second-line supervisor] and me. This was the
procedure at the that time for requesting a change of hours. I advised
you on several other occasions of the procedure and strongly suggested
that you submit a request. However, for whatever reason, you never
submitted such a request . . . . I now understand that you submitted
a request to Personnel for a medical accommodation and Personnel has
requested additional information from you. However, you have not yet
provided such additional information. As you know, about 5-6 months
ago the [agency] adopted alternative work schedules . . . . To date
you have not submitted a request for alternative work hours. If you
want a change in your duty hours, you need to submit a request . . . .
If you do not wish to submit a request for alternative work hours, I
am not aware that I have any alternative but to charge you leave if you
arrive late. To permit you to arrive late without taking leave I believe
creates disparate treatment. What alternatives/solutions/suggestions
do you have? I have always been and still am willing to listen and
consider any suggestions.�)
16Indeed, it appears to us that complainant's duties were not at
all inconsistent with the work restrictions imposed by his doctor in
any event. See Letter from Complainant's Doctor to Agency (June 20,
1994), at 1-2 (in which complainant's physician described only two basic
limitations on complainant's ability to work. The doctor said that
complainant should work no more than 40 hours per week on average, and
that his �overall work demand should be moderate.�) Complainant never
was required to work more than 40 hours per week and his workload never
was greater than that of his coworkers. Indeed, complainant had even
(at least on one occasion) offered to take on additional work. See,
e.g., Letter from Supervisor to Complainant's Doctor (August 16, 1994),
at 1; Transcript of Testimony of Complainant's Supervisor (June 24,
1999), at 19, 22; and Complainant's Email to Supervisor (Nov. 4, 1994).
For these reasons alone, we feel comfortable concluding that there was
no failure to accommodate here. See O'Connell v. United States Postal
Service, EEOC Appeal No. 01985199 (Mar. 29, 2000) (refusing to find
a failure to accommodate where workplace conditions were consistent
with the employee's medical restrictions as detailed in instructions
provided by the employee's doctor); cf. Kovian v. United State Postal
Service, EEOC Appeal No. 01980856 (June 12, 2001) (declining to order
the accommodation requested by the employee at issue, since there was
no nexus between the disability diagnosed and the accommodation desired).