0120142449
04-06-2016
Taren P.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Taren P.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120142449
Hearing No. 420-2-14-00022X
Agency No. ARREDSTON12NOV04750
DECISION
On June 26, 2014, Complainant filed an appeal from the Agency's May 19, 2014, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant failed to establish that she was discriminated against on the bases of disability, and reprisal for prior EEO activity when: (1) on September 25, 2012, the Director of Defense Missiles (Director) offered her a position as a GS-1102-14, Contract Specialist/Contracting Officer with the stipulation that she could not have the position and telework as she had been for the past nine years due to her disability; and (2) on October 4, 2012, the Director tentatively offered her the same position while proceeding to extend firm job offers to other "tentatively selected" employees for positions filled under the same announcement - no request was made to obtain a firm job offer for Complainant, and she was not included in the announcement of the employees selected.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-1102-13, Procurement Analyst at the Agency's ACC - Redstone Policy Division in Redstone Arsenal, Alabama. The following facts were presented as undisputed in the AJ's decision: Complainant has cerebral palsy and suffered a back injury at work in 2002. After being out on Worker's Compensation for an extended period following her back injury, a decision was made to permit Complainant to telework daily. A temporary telework agreement, setting July 15, 2003 as the effective date, was signed on August 1l, 2003 and a permanent agreement was signed on June 29, 2005. The record reflects that no further review of the agreement was required.
On June 21, 2012, an announcement was sent out to the Redstone Arsenal Contracting Center ("ACC-Redstone") announcing vacancies for multiple GS-14 Contract Specialist positions. The prescribed duties stated that the position would entail serving as the focal point for "planning, developing, and executing complex contractual strategies," serving as "lead negotiator of multi-disciplined teams," guiding "supporting Contract Specialists in developing solicitations and implementing complex and unique acquisition techniques," and establishing a "full range of contract administration action." Complainant applied for the position, and received a tentative offer of promotion, via e-mail, on September 25, 2012. The tentative offer stated "[t]his position is not eligible for telework due to the nature of the assigned work and daily duties. The position requires extensive face-to-face contact with our customers (continuous support), direction from management/leadership, mentoring of assigned employees (i.e. interns/fellows), administration of technical guidance, and your physical presence."
On September 26, 2012, Complainant, accepted the position via e-mail, but told the HR specialist that she "would need to continue ... teleworking." She also indicated that she was "willing to accept an immediate lateral transfer to a GS-1102-14 position in the Policy Division," a proposal repeated by Complainant throughout this process. On October 4, 2012, an announcement was sent, via e-mail, to all of ACC-Redstone congratulating twenty-four (24) selectees for the GS-14 positions. Complainant's name was not on the list. That same day, Complainant requested a meeting with the Director of ACC-Redstone regarding her absence from the list.
On October 23, 2012, Complainant received an e-mail advising her that a Supervisor would follow-up with her on her request to telework as a reasonable accommodation. She was also advised that there was no GS-14 Procurement Analyst position available and that even if there were the position would have to be filled through competition. Complainant was reminded that the position she applied for was a Contract Specialist position and not a Policy Analyst position. On November 5, 2012, Complainant replied with an e-mail message, copying other management officials within ACC-Redstone and her Union Representative, addressing her ability to perform the duties of the position. Complainant did not address how, while teleworking full-time, she could guide other contracting specialists, serve as a lead negotiator for multi-disciplined teams, or serve as the focal point for planning, developing, and executing complex contractual strategies -- duties which she was advised were essential to the GS-14 Contract Specialist position. On November 15, 2012, the Director sent Complainant a memorandum, explaining that the GS-14 position was not suitable for full-time telework, as the positions were developed, in part, to train junior contract specialists, would require work on source selection boards, and require some temporary travel duty. The Director indicated that he would consider alternate accommodations, such as limited telework, sufficient workspace to accommodate Complainant's motorized wheelchair, and any other accommodations which would allow her to "perform some of the duties at the work site."
On November 27, 2012, Complainant sent a reply and again included other management officials, expressing her concern that the OWCP-5c form on file was not viewed as sufficient evidence to establish that she needed to telework daily indefinitely. She stated that she would comply with the Agency's request for updated medical documentation, and also indicated that she could travel infrequently on official business as long as her back was not "in a flare state at the time and reasonable accommodations [were] approved in the travel orders." Complainant and Agency officials went back and forth in attempts to reach a solution that would enable Complainant to accept the position. Three offers of accommodation were presented to Complainant following the receipt of updated medical information before the tentative offer was withdrawn on April 4, 2013 once it was clear the Agency and Complainant could not reach an agreed on reasonable accommodation. The withdrawal letter reiterated the final offer of accommodation made by the Agency of: limited telework of 2 days per week; rest breaks as needed to relieve back pain; and accommodation of Complainant's wheelchair.
On March 7, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of "Issues Presented" above. At the conclusion of 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. Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency's December 14, 2013, motion for a decision without a hearing and issued a decision without a hearing on May 2, 2014. The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not establish that the Agency subjected her to discrimination as alleged.
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 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 Chapter 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
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given a comprehensive statement of undisputed facts, she was given an opportunity to respond to the motion and statement of undisputed facts, and she had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Rehabilitation Act case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). 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 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).
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, 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. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), 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. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Assuming, arguendo, that Complainant is an individual with a disability, pursuant to the Rehabilitation Act, and that she established prima facie cases of discrimination based on disability and reprisal, we find that the Agency articulated legitimate, non-discriminatory reasons for its decision to withdraw the tentative job offer for the GS-14 Contract Specialist position from Complainant. We find that Complainant failed to demonstrate that any conduct on the part of the Agency was based on discriminatory animus.
The record reflects that the position Complainant applied for was described as very interactive, busy, and having short response times. The Director explained that he thought that it would be very difficult for a person to perform the duties while teleworking. Additionally, the Director explained that the GS-14s were the ones who "interface with everyone." They are considered the subject matter experts who guided lower graded contracting specialists, most of whom only have three to four years of experience. The GS-14 positions were created to relieve supervisors from spending much of their time doing contracting officer duties, and to select Senior Contracting Officers who could act as a cushion between the supervisors and the inexperienced contracting officers, to permit the supervisors to resume their supervisory duties while the GS-14s could mentor and develop the junior contracting officers.
The Agency attempted to engage with Complainant over a period of approximately eight months in an attempt to come up with an effective accommodation. Complainant refused all three offers of accommodation. It was not until Complainant rejected the third offer of accommodation that a decision was made to rescind the tentative offer of employment. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). We find that no evidence of this kind exist in the instant matter.
Finally, to the extent that Complainant is also alleging that she was denied a reasonable accommodation, we find that she has not established that she was a qualified individual with a disability. The record reflects that Complainant was unable to establish that she is an individual who, with or without reasonable accommodation, could perform the essential functions of the job in question. The record indicates that she could not perform the essential functions of the position she sought because it required extensive face-to-face contact with customers (continuous support), direction from management/leadership, mentoring of assigned employees (i.e. interns/fellows), administration of technical guidance, and the physical presence of the employee. Complainant, as noted above, required telework daily indefinitely. Neither Complainant nor management was able to identify an accommodation that would have allowed her to perform the essential functions of the position at issue.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to demonstrate she was subject to discrimination as alleged; the Agency's final order adopting this decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (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
__4/6/16________________
Date
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
4
0120142449
8
0120142449