[Redacted], Maryland E., 1 Complainant,v.Merrick Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020003359 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maryland E.,1 Complainant, v. Merrick Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020003359 Hearing No. 430-2018-00498X Agency No. BOP-2017-01017 DECISION Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 2, 2020, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued summary judgment in the Agency’s favor; 2) whether Complainant established that she was denied a reasonable accommodation for her disability; and 3) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask unlawful discrimination. 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. 2020003359 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Correctional Systems Specialist, GS-08, at the Agency’s Federal Correction Institution in Petersburg, Virginia. Report of Investigation (ROI), at 26. During her employment, Complainant apparently injured her back in 2000 when she was lifting a heavy box of inmate property, and she continued to have chronic issues with her back thereafter. Complainant however did not inform the Agency of her chronic back issues until April 2017. ROI, at 48. Complainant subsequently told her first-level supervisor (S1) that she was scheduled to have surgery related to her back issue, which took place on May 2, 2017. Id. at 54. Upon returning to work from surgery on May 15, 2017, Complainant was assigned to work in the mailroom until July 21, 2017. After Complainant came back to work from her surgery, she provided a doctor’s note to S1, which included a restriction that she was to lift no more than five-pounds. Complainant maintained that S1 was supposed to have forwarded her doctor’s note to Human Resources (HR) but failed to do so until July 21, 2017. Id. at 55. Complainant maintained, however, that her coworkers would lift items for her, and therefore she was not made to lift items in excess of her five-pound restriction. Id. at 66-67. According to S1, Complainant called her on July 21, 2017, asking if someone could handle her mail duties because her back was hurting and that she was on a medical restriction. Id. at 207. S1 averred that after Complainant referenced her doctor’s note, she checked the note in the file and first saw that Complainant had the five-pound lifting restriction. Id. S1 maintained that she told HR that she failed to read Complainant’s entire doctor’s note, and HR thereafter immediately provided Complainant with a job modification memorandum. Id. Complainant was thereafter immediately placed on light duty status in accordance with her lifting restriction. The Complex Case Management Coordinator believed that Complainant should have said something about her five-pound restriction when she initially provided her doctor’s note to S1. Subsequently, according to Complainant, she went to see her doctor on August 21, 2017, who determined that she could return to work on full duty under a lifting restriction of no more than 50-pounds. Id. at 83-85. On August 31, 2017, the HR Manager presented Complainant with a memorandum, requesting updated medical documentation clarifying Complainant’s restrictions, including the anticipated duration of the restrictions. Id. at 288. Complainant did not understand why the HR Manager needed such medical documentation, as her medical doctor already released her to full duty. Complainant averred that the HR Manager then advised her that she would remain in light duty status and could not be returned to full duty until she received the requested medical documentation. Id. at 84-88. According to Complainant, at the Warden’s recommendation, she spoke to the Associate Warden about the matter who then questioned the HR Manager. Id. at 94-96. The HR Manager then reportedly told Complainant and the Associate Warden that Complainant could only return to full duty if she could lift over 55 pounds. Id. 2020003359 3 Complainant was placed on light duty in accordance with her 50-pound lifting restriction until her doctor lifted her 50-pound restriction in October 2017. Id. at 170. Complainant was thereafter allowed to return to full duty. Id. at 219. On October 26, 2017, Complainant received a lower quarterly rating for July, August, and September 2017 in the element of Communication. Id. at 301-305. Complainant specifically received an “Exceeds” rating in the element of “Communication,” but she previously received an “Outstanding” rating in Communication for April, May, and June 2017. Id. Complainant however received the same rating of “Exceeds” in all other elements as she did in her previous quarterly rating. Id. S1 explained, in pertinent part, that she previously provided Complainant with a rating of “Outstanding” in Communication because Complainant helped do audits for a program review, but she did not perform any audits for the next rating quarter. Id. at 231. On November 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (physical), age (56), and reprisal for prior protected EEO activity when: 1. On May 15, 2017, S1 failed to submit required medical restrictions documentation and violated the terms of her medical restrictions; 2. On September 5, 2017, she was subjected to disparate treatment when she was directed to sign a medical release form; and 3. On October 26, 2017, she received a lowered quarterly performance evaluation. Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s August 5, 2019, motion for a decision without a hearing and issued a decision without a hearing on February 25, 2020, in the Agency’s favor. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant did not file a brief on appeal. The Agency requests that we affirm its final order adopting the AJ’s decision. 2020003359 4 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 (if accurate) or reject (if erroneous) 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 Summary Judgment The Commission's regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC's decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party's evidence and must draw justifiable inferences in the non-moving party's favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point to any particular evidence in the investigative file or other evidence of record that indicates such a dispute. We find the record was fully developed and that the AJ properly determined that this case was suitable for summary judgment. 2020003359 5 Reasonable Accommodation (Claim 1) Under the Commission's regulations, an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). Assuming arguendo that Complainant was a qualified individual with a disability, we find that Complainant did not establish that she was denied a reasonable accommodation in this case. We note that upon returning to work from surgery on May 15, 2017, Complainant provided a doctor’s note to S1, indicating that she had a five-pound lifting restriction. Complainant however did not follow-up with S1 or any other management official concerning her lifting restriction until July 21, 2017, wherein she referenced her doctor’s note. At that time, S1 stated that she mistakenly did not read Complainant’s entire doctor’s note, and she was therefore unaware that Complainant’s doctor had placed her on a lifting restriction. We note that the Complex Case Management Coordinator believed that Complainant should have said something about her five- pound restriction when she initially provided her doctor’s note to S1. Nevertheless, there is no dispute that Complainant’s request for accommodation was immediately granted after she referenced her doctor’s note on July 21, 2017. In addition, there is no dispute that Complainant was not made to lift in excess of her five-pound restriction during the relevant time as coworkers assisted her in lifting items when she needed. We find that Complainant has not established that she was denied a reasonable accommodation in violation of the Rehabilitation Act. Even assuming, without finding, that Complainant established that she was denied a reasonable accommodation, we find that the record reflects that the Agency acted in good faith in this case. Therefore, Complainant would nonetheless not be entitled to compensatory damages. See Kirkland v. Dep’t of Army, EEOC Appeal No. 0120062582 (July 20, 2007) (complainant not entitled to compensatory damages after the agency acted in good faith in failing to provide complainant with a reasonable accommodation). As noted above, Complainant’s request for accommodation was immediately granted after she referenced her doctor’s note on July 21, 2017. Disparate Treatment (claims 2 and 3) To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020003359 6 To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex, disability, age, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, regarding claim 2, the HR Manager explained that Complainant was asked to provide updated medical documentation because Complainant’s doctor provided a note stating that Complainant had restrictions of lifting nothing over 50 pounds. But the note did not address any of the Agency’s questions regarding the diagnosis of Complainant’s condition, the treatment, and the expected duration of her condition, among other things. With regard to claim 2, S1 explained, in pertinent part, that she previously provided Complainant with a rating of “Outstanding” in the element Communication because she helped do audits for a program review, but she did not perform any audits for the next rating quarter. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Upon review, we find that Complainant has not established that the Agency’s reasons were pretextual based on her protected classes or that the Agency was motivated by discriminatory or retaliatory animus. In so finding, we note that there is no dispute that Complainant went from a five-pound restriction to a 50-pound restriction, and therefore the Agency was simply seeking more information regarding whether Complainant would be able to return to full duty and perform the functions of her position.2 In addressing claim 2, we note that Complainant’s rating was only lowered in one element by one value and she received the same ratings in all five other elements as she did in her previous quarterly evaluation. We find that Complainant has not established that she was subjected to discrimination with respect to claims 2 and 3. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order finding no discrimination. 2 We find that to the extent Complainant is alleging that the HR Manager subjected her to an impermissible disability-related inquiry, the Rehabilitation Act prohibits such inquiries, including inquires as to the nature and severity of a disability, unless such inquiries are shown to be job-related and consistent with business necessity. 29 C.F.R. § 1630.13; Hartless v. U.S. Postal Serv., EEOC Appeal No. 0120101017 (June 4, 2010). We find that based on the facts presented the HR Manager’s inquiry was job-related and consistent with business necessity. 2020003359 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together 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). 2020003359 8 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 August 16, 2021 Date