Wilfredo M.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.Download PDFEqual Employment Opportunity CommissionDec 19, 20180120172680 (E.E.O.C. Dec. 19, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilfredo M.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 0120172680 Hearing No. 531-2016-00339X Agency No. HHSFDACTP04716 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 12, 2017, final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Regulatory Counsel, GS-12, at the Agency’s Center for Tobacco Products ("CTP"), Office of Medical Products and Tobacco in Silver Spring, Maryland. On March 30, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against him and subjected him to a hostile work environment based on disability and in reprisal for prior protected EEO activity when: 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. 0120172680 2 1. Complainant’s supervisor retaliated against Complainant for prior EEO activity when the supervisor gave Complainant a lower Performance Management Appraisal Program (“PMAP”) rating; 2. on February 17, 2016, Complainant’s supervisor falsely accused Complainant of not completing a task which was assigned; 3. on February 16, 2018, Complainant’s supervisor failed to meet with Complainant to discuss outstanding issues regarding a recent contract transition, as well as requiring Complainant to complete an assignment although Complainant was not the proper employee assigned to the task; 4. Complainant’s supervisor continued to deny Complainant’s reasonable accommodation as it relates to Complainant’s disability; and 5. On January 26, 2016, Complainant’s supervisor refused to provide clear instructions for work assignments that were Standard Operating Procedure (“SOP”), which was one of Complainant’s approved reasonable accommodations. After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant initially requested a hearing but later withdrew his request. On July 12, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant did not submit any additional statements or briefs in support of his appeal. ANALYSIS AND FINDINGS Disparate Treatment: A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 0120172680 3 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant stated that he has been diagnosed with several medical conditions, including migraine headaches, a number of back and knee problems, eye issues and sleep apnea. He also has been diagnosed with an adjustment disorder, with anxiety and insomnia.2 He indicated he had engaged in prior EEO activity when he made a request for reasonable accommodation for his medical conditions in January 2014, and filed a prior EEO complaint in May 2014. He stated that although his prior complaint was not against his current supervisor, he believed everyone in management was aware of it. Regarding claim 1, Complainant’s first-line supervisor (“S1”) stated that Complainant had two prior managers in 2015 and S1 consulted with them to determine Complainant’s initial 2015 PMAP rating of 3.8. S1 testified that the union representative informed him that Complainant would file a grievance if his rating was not changed to a 4. S1 explained that he conferred again with Complainant’s prior manager and determined that a 4 rating was appropriate and noted that the change “ha[d] no effect on pay, bonus, [or] promotion.” The record contains a copy of Complainant’s 2015 PMAP indicating that his overall rating was adjusted from a 3.8 to a 4.0. Regarding claim 2, S1 testified that he only inquired from Complainant whether Complainant had completed the assignment. S1 explained that he requested that Complainant conduct a research assignment, but Complainant refused and decided to wait and let another employee complete the assignment. S1 further explained that he instructed Complainant and another employee (who was departing from the office) to coordinate transitioning contracts over to Complainant by mid-January 2016. S1 stated that he learned in February 2016 that the task had not been completed and Complainant acted as if he “didn’t know anything about the contract.” S1 explained that he provided Complainant a list of instructions to complete the task, including researching the point of contact for the contract, and Complainant responded by stating that S1 was “aggravating his disability” and that S1 “needed to go to counseling.” S1 further explained that he inquired about the status assignment because Complainant never indicated whether it had been completed. 2 We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability. 0120172680 4 Regarding claim 3, S1 explained that he asked Complainant to complete “minor research” and provide information which was an assignment well within Complainant’s duties as a Contracting Officer Representative (“COR”).3 S1 further explained that Complainant attempted to schedule his meeting with S1 on the same day and time that S1 conducted his “standing meeting” every Friday. S1 stated that all employees have access to his calendar and Complainant could have selected a day and time which S1 had open on his calendar. S1 further testified that he has standing one-on-one meetings with all employees, but Complainant has cancelled his meeting with S1 since February 2016. The record includes a February 16, 2016 email from S1 to Complainant indicating that S1 informed Complainant that the date and time Complainant selected conflicted with S1’s other meeting. The email further indicates that S1 encouraged Complainant to pick another date and time that was convenient for both of them. Another email dated, February 16, 2016, indicates that S1 requested that Complainant conduct “research so [he] can meet the needs of [the] office.” Regarding claim 5, S1 explained that no SOP existed for outlining the process CORs were to use to staff documents for review. However, S1 stated that he ultimately provided Complainant “detailed” “step-by-step directions” on how to complete the process. Nevertheless, S1 testified that Complainant “refused to do anything” with this information. Reasonable Accommodation Request: Claim 4 and Claim 5 in-part To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See 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). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. We presume, without so finding, that Complainant is a “qualified individual with a disability.” The record indicates that Complainant requested reasonable accommodations in 2014 and in 2015. The record further indicates that on April 3, 2014, the Agency granted Complainant’s requests for (1) flexi-time and telework one day per week; (2) noise cancelling headphones; (3) a computer glare screen; and (4) accessible/designated parking. The Agency partially approved Complainant’s 2015 reasonable accommodation requests. In a June 9, 2015 decision, the Agency granted Complainant’s requests to: (1) receive direction, assignments, and request from one supervisor or individual; (2) engage in direct (streamlined) 3 S1 explains in his affidavit that Complainant is a COR, but was initially working as regulatory counsel in a different division before he was moved to the contracting branch. 0120172680 5 communication in general; and (3) work independently, particularly when developing work product. However, the Agency denied Complainant’s request to only communicate with individuals in his chain of command. A copy of the June 9, 2014 management decision on this accommodation request indicated, in pertinent part, that it was denied because: It will be necessary for the employee [Complainant] to communicate with colleagues at all levels in order to complete assignments, provide responsive service in support of program efforts and requirements, deal with unusual circumstances, and to share knowledge. We find that the Agency provided sufficient evidence that granting this particular accommodation would have interfered with Complainant performing some of the essential functions of his position. Although protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9 (October 17, 2002). Here, we find that Complainant has not been unlawfully denied a reasonable accommodation. The other three accommodations granted Complainant were in lieu of this accommodation and there has been no showing by Complainant that they were not effective in addressing his disability-related concerns. With regard to claim (5), we note that the record fails to indicate that Complainant requested a reasonable accommodation when he requested a copy of the SOPs from S1. When an individual decides to request accommodation, the individual or his representative must let the employer know that he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use “plain English” and need not mention that ADAAA/Rehabilitation Act or use the phrase “reasonable accommodation.” See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). Here, S2 testified that she was not aware that SOPs were included in the 2015 Reasonable Accommodation Request Decision she wrote for Complainant. S2 further stated that “in late January 2016, [Complainant] asked her ‘if there could be a formalized process for how CORs are supposed to have SOWs approved,’” but Complainant did not indicate that he was requesting a reasonable accommodation. S2 explained that she suggested that Complainant follow up with S1 and she further explained that she suggested to S1 that Complainant help draft the SOPs. The record includes a copy of a January 26, 2016 email from Complainant to S2 where Complainant addresses his concern and need for a “formalized process” for the purposes of “avoid[ing] usurpation of COR input and relevance.” Complainant fails to indicate that his reason for having a “formalized process” is related to his medical condition. 0120172680 6 Based on this evidence, we find that Complainant has not shown that the Agency failed to provide her a reasonable accommodation. Harassment To the extent that Complainant alleged that all matters discussed above were also designed to subject his to discriminatory harassment, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected basis – in this case, his disability and reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements – hostility and motive – will the question of Agency liability present itself. Here, as we have already concluded, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his disability and/or reprisal. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Accordingly, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. 0120172680 7 Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 December 19, 2018 Date Copy with citationCopy as parenthetical citation