0120092103
03-03-2011
Robert A. Leak, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Robert A. Leak,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092103
Agency No. 2004-0688-2008101290
DECISION
On April 9, 2009, Complainant filed an appeal from the Agency's March
24, 2009, final decision concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission
accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission
VACATES the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether the Agency adequately investigated
Complainant's claim that he was denied a reasonable accommodation when
he was required to request Leave Without Pay (LWOP) to attend his
Post-Traumatic Stress Disorder (PTSD) meetings; and (2) whether the
Agency adequately investigated Complainant's claim that management did
not assign female co-workers to work in the "dishroom" and "pots/pans"
as often as him and his male co-workers.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a part-time Food Service Worker (FSW), WG-1, at the Agency's VA
Medical Center (VAMC) in Washington, DC. Complainant's scheduled
tour of duty was from 7:00 a.m. to 11:00 a.m. and he worked twenty
hours per week, although he did not work the same days each week.
Complainant's First Level Supervisor (S1) was the Food Service Foreman.
Complainant's Fourth Level Supervisor (S4) was the Chief, Nutrition and
Food Service Department. Complainant, a Gulf War veteran, attested that
he has suffered from the condition since the 1992, but was not officially
diagnosed with PTSD until June 2007. Complainant's Aff., at 10.
On February 11, 2008, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination and harassment on the bases
of race (African-American), sex (male), disability (PTSD), and reprisal
for prior protected EEO activity under Title VII when:
1. On January 3, 2008, S1 required him to request LWOP to attend his
PTSD meetings;
2. On January 16, 2008, S1 denied his request to work extra hours outside
his scheduled tour of duty;
3. On January 16, 2008, S4 required him to request LWOP to attend his
PTSD meetings in the future;
4. On January 29, 2008, S1 required him to work outside his medical
restrictions;
5. During January and February 2008, S1 assigned him and male WG-1 FSWs
more frequently to the "dishroom" and "pots/pans" than female WG-1 FSWs;1
6. On February 18, 2008, S1 removed his name from a sign up sheet for
extra hours; and
7. Beginning in February 2008, S1 assigned him extra work such as cleaning
the utility closet or the walk-in refrigerator.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
requested a final decision by the Agency.
On November 18, 2008, the Agency's Office of Employment Discrimination
Complaint Adjudication (OEDCA) issued a letter remanding Complainant's
complaint for a supplemental investigation on claims 1, 3, and 5.
Regarding claims 1 and 3, OEDCA found that the EEO Investigator's
fact-finding focused only on disparate treatment and harassment, but
in retrospect the language in Complainant's attachment to his formal
complaint suggested a reasonable accommodation issue.2 Specifically,
OEDCA noted that Complainant should clarify what schedule changes he asked
for and management should be asked whether the accommodation Complainant
requested could reasonably be provided and, if not, why not.3 Regarding
claim 5, OEDCA found that, because Complainant gave no specific dates or
names, management accordingly responded with little more than general
denials and the statement that dishroom duties were normally assigned
to FSWs who were WG-1 rather than WG-2. In addition, OEDCA noted that
there was no summary, digest, or analysis explaining the 60 pages of
assignment schedules in the record. Further, OEDCA stated that if the
schedules reflected that male WG-1 FSWs were assigned to dishroom duties
significantly more often than female WG-1 FSWs were, management needed
to explain the discrepancy, "as specifically, as concretely, and in as
much detail as possible."
After the EEO Investigator completed the supplementary investigation,4
the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.
Initially, the Agency noted that Complainant raised three theories of
discrimination: harassment, denial of accommodation, and disparate
treatment. Regarding the harassment theory, the Agency found that
Complainant had alleged nothing that constituted verbal or physical
conduct based on his race, sex, disability, or prior EEO activity.
Regarding the denial of accommodation theory, the Agency found that
Complainant failed to establish that his PTSD had a sufficiently serious
impact on his major life activities as to constitute a disability for
purposes of the Rehabilitation Act. In addition, the Agency found that
Complainant's supervisors were unaware that he had a disability, much
less that he was requesting an accommodation for it. Further, the Agency
found that Complainant failed to establish that he needed the requested
accommodation because the record reflected that he took only three or four
hours of leave to attend PTSD meetings. Regarding the disparate treatment
theory, the Agency first found that Complainant failed to establish a
prima facie case of discrimination on the bases of race, sex, disability,
and reprisal. Next, the Agency found that management had articulated
legitimate, nondiscriminatory reasons for its actions. Finally, the
Agency found that there was no significant evidence of pretext.
CONTENTIONS ON APPEAL
Complainant did not submit a statement or brief in support of his appeal.
In opposition, the Agency requested that we affirm its final decision.
The Agency argued that its final decision clearly and precisely
articulated management's legitimate, nondiscriminatory reasons and
that, beyond Complainant's conclusory statements, nothing in the
record suggested that management's actions were a pretext for unlawful
discrimination.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant
to
29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
Ch. 9, � VI.A. (Nov. 9, 1999) (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").
Adequacy of the Record - Claims 1 and 3 (Reasonable Accommodation)
At the outset, we note that Complainant's denial of accommodation
claim appears to encompass claims 1 and 3. Essentially, Complainant
is alleging that the Agency should have accommodated his disability
by allowing him to attend his PTSD meetings without requiring him to
request LWOP. In his supplemental affidavit, Complainant attested that
he had asked S1 and S4 for a change in schedule so he could attend the
PTSD meetings without being charged leave. Complainant's Suppl Aff.,
at 19. Under the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause undue hardship. 29 C.F.R. � 1630.2(o)
and (p).
In order to determine whether Complainant is entitled to a reasonable
accommodation, we must first analyze whether Complainant is a "qualified
individual with a disability" within the meaning of the Rehabilitation
Act. An "individual with a disability" is one who: (1) has a physical
or mental impairment that substantially limits one or more major life
activities; (2) has a record of such an impairment; or (3) is regarded
as having such an impairment.
29 C.F.R. � 1630.2(g). An impairment is substantially limiting when it
prevents an individual from performing a major life activity or when it
significantly restricts the condition, manner, or duration under which
an individual can perform a particular a major life activity.
29 C.F.R. � 1630.2(j). The individual's ability to perform a major life
activity must be restricted as compared to the ability of the average
person in the general population to perform that same activity. Id.
Major life activities limited by mental impairments include, but are not
limited to, learning, thinking, concentrating, interacting with others,
caring for oneself, speaking, performing manual tasks, or working.
EEOC Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities, No. 915.002, Question 3 (Mar. 25, 1997).
Sleeping is also a major life activity that may be limited by mental
impairments. Id.
The record contains two pieces of medical documentation regarding
Complainant's PTSD. First, an October 18, 2007, "PTSD INDIVIDUAL NOTE"
from Complainant's Clinical Social Worker (CSW) stated the following:
To Whom It May Concern: This is to verify that [Complainant] is
active in the VAMC PTSD/Trauma program here in the Washington,
VAMC. The group time is every Thursday from 0900 - 1000 and
will be for about nine months. Your support of this veteran is
appreciated. If further clarification is needed I may be reached
at [extension]. Vet has given his verbal permission for the above
to be released. Report of Investigation (ROI), Ex. C-5, at 2.
Second, a March 2, 2008, "PTSD: PCT TREATMENT PLAN" from CSW briefly
outlined that Complainant: (a) had an initial treatment plan; (b)
was being treated by a 13-member Trauma Services Team; (c) did not
pose a risk to himself or to others; (d) was lucid and aware of his
situation; (e) had no restrictions; and (f) was stable enough to handle
intensive outpatient treatment. Id. at 5. In addition, the record
contains affidavit testimony from Complainant about his nightmares,
depression, lack of sleep, loss of appetite, and loss of sociability.
Complainant's Aff., at 10-17.
It is unclear from the foregoing or the remainder of the record, as to
what extent Complainant's PTSD impacts his major life activities. For
example, the record is devoid of any medical documentation indicating how
Complainant is affected by his PTSD. When asked by the EEO Investigator
if he had medical information showing how his life activities are
affected, Complainant responded, "It's in my PTSD statement. I have
my medical records." Id. at 12. The EEO Investigator stated that
she would fax him a medical release because she was "going to need to
have that information as part of the investigation." Id. In addition,
Complainant attested that he had medical documentation relating to his
PTSD from various medical professionals: CSW, his primary care physician,
the psychologist who referred him for PTSD, and the psychiatrist he was
referred to for PTSD. Id. at 16-17. Further, Complainant attested that
management became aware of his PTSD in July 2007 when he submitted the
following medical documentation: (a) paperwork from CSW that he had been
accepted into the treatment program; and (b) a June 2007 assessment and
referral from his psychologist. Id. at 18.
There is no question that Complainant bears the burden of proof in
demonstrating that he is substantially limited in a major life activity
because of his impairment. See Murphy v. United Parcel Service, 527
U.S. 516, 521-23 (1999). On the other hand, the Agency is charged
with the obligation to develop an adequate investigative record.
The EEO Investigator is required to conduct a thorough investigation,
identifying and obtaining all relevant evidence from all sources
regardless of how it may affect the outcome. EEO MD-110, Ch. 6, VI.D.
Therefore, an EEO Investigator must exhaust those sources of information
likely to support both the positions of Complainant and the Agency. Id.
Although Complainant's testimony reflects that there is a significant
amount of medical documentation related to his PTSD, most of that
documentation is not in the record.5 We note that such documentation
should be readily available, as Complainant attested that his health
care provider is the VAMC and that he had already submitted some of the
medical documentation to management in July 2007.
Finally, as stated above, an agency is required to make reasonable
accommodation of the known physical and mental limitations of a qualified
individual with a disability unless the agency can show that accommodation
would cause undue hardship. 29 C.F.R. � 1630.2(o) and (p). Upon review
of the record, it is also unclear whether, if Complainant was a qualified
individual with a disability, accommodation would cause undue hardship to
the Agency. In her supplemental affidavit, S4 attested that Complainant
wanted to change his work schedule so that he could come in and work on
a Thursday when he was not scheduled to work. Supplemental Report of
Investigation (SROI), Ex. B2a, at 7-8. When asked by the EEO Investigator
if that could have been possible, S4 attested, "No ... [b]ecause we have
scheduled a certain number of people on each day." Id. at 8. When asked
by the EEO Investigator if there was any other type of arrangement that
could have been done to change Complainant's schedule where he could
have attended his PTSD meetings without being charged any kind of leave,
S4 simply responded, without additional explanation, "No." We note
that this is the only evidence in the record regarding why the Agency
was unable to change Complainant's work schedule because the reasonable
accommodation issue was not explored during the initial fact-finding
investigation and S4 did not provide a supplemental affidavit.
As noted above, the Agency has a duty to develop an impartial and
appropriate factual record upon which to make findings on the claims
raised by the written complaint. An appropriate factual record is one
that allows a reasonable fact finder to draw conclusions as to whether
discrimination occurred. See 29 C.F.R. � 1614.108(b). Based on the
above, we find that the present record lacks the necessary information
upon which to adequately determine if the Agency's actions were lawful
under the Rehabilitation Act. See Carr v. United States Postal Service,
EEOC Appeal No. 01A43665 (May 18, 2006). Accordingly, we remand these
claims back to the Agency to conduct a supplemental investigation.
Adequacy of the Record - Claim 5
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that she 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 804 n.14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency's explanation is pretextual. 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 its final decision, the Agency found that Complainant failed to
establish a prima facie case on the basis of sex because "[t]he weight of
the evidence is that males were not disproportionately assigned to dish
room/pots and pans duties." Regarding management's response, the Agency
stated, "[S4] and [S1] admitted that more male FSWs than female FSWs were
so assigned, but said that this was because there were significantly more
male than female WG-01 FSWs. This was particularly true for part-timers.
A review of the schedules does not, so far as we can tell, indicate any
significant disproportion in the assignments."
Upon review of the record, we find it to be insufficiently developed
to allow a determination on the merits of this claim. Although the
Agency's final decision stated that the record did not indicate "any
significant disproportion in the assignments," this does not appear to
be the case. The record reflects that, on Complainant's morning shift,
there were approximately two part-time, female WG-1s and nine part-time,
male WG-1s. SROI, Ex. C1, at 1. According to the EEO Investigator's
review of work assignments,6 in January and February 2008, a female WG-1
was assigned to the dishroom or pots and pans on four out of the 60 days.
Id. at 2-3. In contrast, Complainant was assigned to the dishroom or
pots and pans on 35 out of the 60 days. Id. Furthermore, the Agency
noted in its remand letter that if male WG-1 FSWs were assigned to
dish room duties significantly more often than female WG-1 FSWS were,
"management witnesses need to explain the discrepancy, as specifically,
as concretely and in as much detail as possible." Our review of the
supplemental investigation indicates that the EEO Investigator did not
ask S4 any questions about the discrepancy in assignments and that S1,
who was directly responsible for making the assignments, did not provide
an affidavit. Accordingly, we also remand this claim back to the Agency
as part of its supplemental investigation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we VACATE the Agency's
final decision and REMAND the entire complaint in accordance with the
Order below.7
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall conduct a supplemental investigation to develop an
adequate factual record regarding Complainant's denial of reasonable
accommodation claim. The Agency shall obtain all pertinent evidence to
address Complainant's claim including, but not limited to:
a. Medical documentation regarding Complainant's PTSD from his
Clinical Social Worker, primary care physician, the psychologist who
referred him for PTSD, and the psychiatrist he was referred to for PTSD.
The supplemental investigation shall focus on the manner in which the
condition affects Complainant's ability to perform specific major life
activities, including: the frequency and duration of the condition; the
severity of the condition; and the manner and extent to which Complainant
is affected by the condition.
b. Sworn affidavits from S1 and S4 explaining in detail why they
could not accommodate Complainant's request to change his schedule so that
he could attend PTSD meetings without being required to request LWOP.
2. The Agency shall conduct a supplemental investigation to develop an
adequate factual record regarding Complainant's claim that, during January
and February 2008, he and other part-time, male WG-1 FSWs were assigned
more frequently to the "dishroom" and "pots/pans" than part-time female,
WG-1 FSWs. The Agency shall obtain all pertinent evidence to address
Complainant's claim including, but not limited to:
a. Sworn affidavits from S1 and S4 explaining in detail the reason
for the apparent discrepancy in the assignments to males and females on
Complainant's shift.
3. The Agency shall complete its supplemental investigation and
issue a new final decision, together with the appropriate appeal rights,
within ninety (90) calendar days of the date this decision becomes final,
unless the matter is otherwise resolved prior to that time. A copy of
the Agency's new final decision must be sent to the Compliance Officer
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington,
DC 20013. 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 (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 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
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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
with the Court 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
__3/3/11_______________
Date
1 Complainant alleged discrimination only on the basis of sex with
respect to this claim.
2 OEDCA referred to the following language in the attachment to
Complainant's complaint: "The point that I am trying to make is if I have
to put in leave on my scheduled days to attend (P.T.S.D.) Why I can't
work on my Thursdays off to attend (P.T.S.D.) Work from 7:00a.m. to
9:00a.m. go to (P.T.S.D.) return to work at 10:00a.m. to 11:00a.m. to
complete my 3 hour tour of duty. I asked [S1] why I couldn't work this
schedule on my thursdays off."
3 OEDCA noted that, when S1 and S4 were asked about the LWOP claims during
the initial investigation, they essentially responded that Complainant had
exhausted his accrued leave and could receive LWOP only if he requested
it. OEDCA stated that this was literally true and was not unresponsive to
the questions posed to them, questions seemingly based on the assumption
that the claims were one of disparate treatment and harassment.
4 S1 did not supply an affidavit for the supplement investigation.
In S4's supplemental affidavit taken on December 17, 2008, she informed
the EEO Investigator that S1 would not be available until January 18,
2009.
5 We note that the two pieces of PTSD-related medical documentation in
the record do not provide much information about Complainant's condition
aside from its general existence.
6 The record reflects that, on each shift, three or four employees were
usually assigned to the dishroom and one employee was assigned to pot
and pans. SROI, Ex. C1, at 2-3.
7 Because we determine in this decision that claims 1, 3, and 5 were
not adequately investigated and must be remanded to the Agency for a
supplemental investigation, and in order to avoid fragmentation, we
will not address the Agency's determinations regarding claims 2, 4,
6 and 7 at this time.
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01-2009-2103
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092103