0120080833
07-18-2012
Sylvester Jones, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (National Agricultural Statistics Service), Agency.
Sylvester Jones,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(National Agricultural Statistics Service),
Agency.
Appeal No. 0120080833
Agency No. NASS-2005-01325
DECISION
Complainant timely filed an appeal from the Agency's November 20, 2007, 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., 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision.
ISSUES PRESENTED
The issues presented on appeal are: (1) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the bases of race, disability, age, and reprisal; and (2) whether Complainant established that he was denied reasonable accommodation for his disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Statistical Assistant, GS-8, with the Agency's Environmental and Demographic Section (EDS), Environmental, Economical, and Demographic Branch (EEDB), Statistics Division (SD), at the Agency's National Agricultural Statistics Service (NASS) in Washington, D.C. Report of Investigation (ROI), at 2.
On or around October 7, 2005, Complainant requested reasonable accommodation for his heart condition. ROI, Ex. D15, at 1. Complainant specifically requested to be able to telecommute several days per week as an accommodation for his condition. Thereafter, Complainant's supervisor at the time requested that Complainant provide medical documentation related to his condition. Complainant then forwarded his medical documentation to the Agency's Medical Officer. Id.
On November 13, 2005, Complainant was assigned to a new first-level supervisor (S1). ROI, at 2. In December 2005, the Agency's Medical Officer reported his findings to the Disability Program Manager (DPM) that Complainant was a "qualified individual with a disability." ROI, Ex. D2, at 5. The DPM, via e-mail, notified S1 and Complainant's former supervisor that Complainant was a qualified individual with a disability and reiterated that Complainant had requested to telecommute as an accommodation for his condition. Id. On January 30, 2006, S1 responded to the DPM's e-mail:
The email history below informed me that [Complainant] has been approved to telecommute several days per week based on information he provided to [the Medical Officer]. . . . Do I need to approach [Complainant] since I have received your notification that he has received approval, or does [Complainant] need to make a formal request of me.
Id.
On February 3, 2006, the DPM responded to S1's e-mail:
You may approach [Complainant] as his supervisor and discuss the determination received from [the Medical Officer] and what type of accommodation he is requesting as a result of his disability. If his request is to participate in the telecommute program this should be discussed with him . . . . Once a decision has been made regarding the specific number of days he may telecommute (if any) an agreement can be finalized.
Id.
S1 never approached Complainant with regard to his request for accommodation. ROI, at 8. S1 indicated that he was instead waiting for Complainant to approach him about the request for accommodation. Id. Neither S1 nor any other management official notified Complainant about the status of his request for accommodation. Id. Complainant asserts that S1 was given a request regarding the days and times he wanted to telecommute. Id. at 9.
On September 7, 2005, contacted an EEO counselor and thereafter filed an EEO complaint on December 19, 2005, alleging that the Agency discriminated against him on the bases of race (African-American), disability, age (66), and in reprisal for prior protected EEO activity when he was not selected to the following positions:
1. NASS-S4M-0002, Information Technology (IT) Specialist, GS-2210-5/7/9/11, closing date: October 30, 2003;
2. NASS-M4M-Q06Q, IT Specialist, GS-2210-5/7/9/11, closing date: April 5, 2004;
3. NASS-M4M-0079, IT Specialist (Computer Security Officer), GS-2210-5/7/9/11, closing date: June 7, 2004;
4. NASS-S4M-0093, IT Specialist, GS-2210-11/12/13, closing date: August 20, 2004;
5. NASS-S5M-0001, IT Specialist, GS-2210-7/9/11, closing date: October 25, 2004;
6. NASS-M5M-0036, IT Specialist, GS-2210-7/9/11, closing date: January 10, 2005;
7. NASS-M5M-0036, IT Specialist, GS-2210-9/11/12/13, closing date: N/A;
8. Solicitation of Interest for a 1-3 month assignment as an IT Specialist or Computer Assistant, GS-2210 or GS-335, in the Network Support Section, Technical Services Branch, IT Division, HQ, closing date: December 30, 2005;
9. NASS-M6M-0020, IT Specialist, GS-2210-7/9/11, closing date: February 21, 2006;
10. NASS-S6M-0021, IT Specialist, GS-2210-9/11/12/13, closing date: March 6, 2006; and
11. NASS-S6M-0035, IT Specialist (Customer Support), GS-2210-7/9/11/12, closing date: April 13, 2006.
Complainant also alleged that he was subjected to discrimination on same bases noted above when:
12. he was not provided training in the Agency's Mathematical Agricultural Career Enhancement (MACE) or Computer Agricultural Career Enhancement (CACE) programs; and
13. he was denied the opportunity to telecommute as a reasonable accommodation for his disability.1
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). In accordance with Complainant's request, 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 dismissed claims 1-11 for untimely EEO counselor contact. The Agency noted that Complainant first made EEO contact on September 7, 2005, which was approximately three years after his first non-selection claim. The Agency also addressed claims 1-11 on the merits, noting, among other things, that Complainant lacked the experience necessary to qualify for an IT position. The Agency noted that Complainant is a Statistical Assistant dealing with mathematical sciences and not IT. With regard to claim 12, the Agency noted that S1 was not responsible for applications pertaining to MACE and CACE programs. The Agency noted that Complainant was responsible for submitting his application to the training programs independently and S1 had no involvement in the application process. With respect to claim 13, the Agency noted that although Complainant is a qualified individual with a disability, he failed to establish that he was denied a reasonable accommodation. The Agency noted that Complainant never made a request to telecommute to S1, and therefore was not denied reasonable accommodation.
CONTENTIONS ON APPEAL
On appeal, Complainant contends the Agency improperly dismissed his non-selection claims based on untimely EEO counselor contact. Complainant contends that he has continuously been denied promotions with the Agency and his non-selections claims are timely under a continuing violation theory. Complainant also contends that the Agency was sufficiently placed on notice that he had requested accommodation for his disability.
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, at Chap. 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").
ANALYSIS AND FINDINGS
Disparate Treatment (claims 1-12)
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). He must generally 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997). To ultimately prevail, 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); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We find that assuming, arguendo, that Complainant timely contacted an EEO counselor and established a prima facie case of discrimination based on race, age, disability, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With respect to claims 1-11, the Human Resources (HR) Specialist explained that Complainant lacked the experience necessary to qualify for an IT position. ROI, at 5-7. The HR Specialist explained that Complainant is a Statistical Assistant dealing with mathematical sciences and not IT. Id. at 5. With regard to claim 12, S1 explained that he was not responsible for applications pertaining to the MACE and CACE training programs. Id. at 8. S1 explained that Complainant was responsible for submitting his application for the training programs independently and he had no involvement in the application process. Id.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this by showing that the Agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. In an attempt to show pretext, Complainant contends that he applied for positions as an entry level IT Specialist because he has not been able to obtain a promotion in his current position. Complainant contends that he is qualified for an IT Specialist position, but never gets interviewed and selected. Complainant contends that many Caucasian coworkers have been promoted while he has not. With regard to claim 12, Complainant contends that S1 said in an e-mail that he did not qualify for the training.
Notwithstanding Complainant's contentions, we note that Complainant worked as a Statistical Assistant and we can find no sufficient evidence in the record that Complainant had experience in the IT field. Also, regarding claim 12, we can find no evidence contained in the record that S1 communicated to Complainant that he was not qualified for the training. The record reflects that S1 e-mailed Complainant instructions on how to apply for the above trainings, but Complainant never applied. ROI, Ex. D14, at 1-3. Therefore, we find that Complainant failed to establish that the Agency's articulated reasons for its actions were pretext for discrimination.
Reasonable Accommodation (claim 13)
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADA Amendments Act), which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act to determine whether Complainant is an "individual with a disability."
Under the pre-ADA Amendments Act framework, Complainant can show he is an individual with a disability by demonstrating that he: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such impairment. 29 C.F.R. � 1630.2(g). The Agency does not dispute that that Complainant is a qualified individual with a disability, accordingly we will address solely Complainant's contention that the Agency denied him a reasonable accommodation.
The record reflects that Complainant made a request to his previous supervisor for a reasonable accommodation related to his disability. When Complainant made his request to his previous supervisor, he put the Agency on notice of his need for a reasonable accommodation. Although Complainant did not specifically request accommodation from S1, the DPM notified S1 of Complainant's request and instructed him to engage Complainant. As such, S1 and other management officials were on notice that Complainant had requested accommodation. Having been placed on such notice, the Agency was required, as part of the interactive process, to discuss with Complainant his accommodation request. We note that Commission guidance provides that an agency should initiate the reasonable accommodation process without being asked if the agency: (1) knows that the employee has a disability; (2) knows, or has reason to know, that the employee is experiencing work place problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002, at Q. 40 (Oct. 17, 2002). We note that Complainant requested accommodation in the form of telecommuting on October 7, 2005, and as of May 10, 2006, Complainant still had not been notified of his request and had not been provided with any form of accommodation. Therefore, we find that Complainant established that the Agency violated the Rehabilitation Act when it failed to provide him with a reasonable accommodation for his disability.
In addition, we find that Complainant may be entitled to compensatory damages for the Agency's failure to accommodate him. Where a discriminatory practice involves the provision of a reasonable accommodation, damages may be awarded if the Agency fails to demonstrate that it made a good faith effort to provide the individual with a reasonable accommodation for her disability. 42 U.S.C. � 1981a(a)(3). In this case, the Agency's failure to contact Complainant about his request even after it was determined that he was qualified individual with a disability constitutes a lack of good faith. We note that many other employees were allowed to telecommute. ROI, Ex.D15, at 4. Complainant is therefore entitled to present a claim for compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision. The Agency is ORDERED to comply with our order below.
ORDER
The Agency is ordered to take the following remedial action:
1. The Agency shall provide Complainant with a reasonable accommodation in the form of telecommuting or other accommodation agreed upon.
2. The Agency shall restore any leave used by Complainant due to the Agency's failure to provide him with a reasonable accommodation.
3. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
4. The Agency shall provide training to the supervisor identified as S1 regarding his responsibilities with respect to eliminating discrimination in the federal workplace. The training must emphasize the Agency's obligations under Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and in particular, its duties regarding reasonable accommodation.
5. The Agency shall consider taking appropriate disciplinary action against S1. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer, If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
6. The Agency shall complete all of the above actions within 120 calendar days from the date on which the decision becomes final.
7. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of leave due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Environmental and Demographic Section (EDS), Environmental, Economical, and Demographic Branch (EEDB), Statistics Division (SD), at its National Agricultural Statistics Service (NASS), Washington, D.C., copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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
July 18, 2012
Date
1 The Agency allowed Complainant to amend his complaint to include the reasonable accommodation claim and any other issues that were like or related to the matters in the formal complaint. ROI, Ex. C2, at 1. As a result, the investigation encompassed claims 8-13 in addition to Complainant's December 19, 2005, formal complaint. Id.
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0120080833
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080833