0120110908
06-15-2012
Alan Sigmon, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Alan Sigmon,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01-2011-0908
Hearing No. 530-2009-00171X
Agency No. 2004-0315-2008103223
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 28, 2010 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of 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 Veteran Service Representative (VSR) at the Agency's Veterans Affairs Medical Center in Huntington, West Virginia.
Complainant is a combat veteran with post-traumatic stress disorder (PTSD), first diagnosed in 2001. Complainant asserted that as a result of the PTSD he experiences symptoms of extreme anxiety, depression, irritability, difficulty sleeping and waking, nightmares, headaches and trouble concentrating. He has taken a variety of medications for these symptoms. Complainant stated that the combination of his symptoms and the medication often made it difficult for him to wake up and get to work early. Complainant claimed that his PTSD-related symptoms were exacerbated in July 2007, following a landslide that engulfed his house. At the time, he was diagnosed with panic disorder and associated depression.
On July 17, 2008, Complainant filed a formal EEO complaint alleging that he was subjected to discrimination and a hostile work environment on the basis of his disabilities (PTSD, panic disorder, depression)1 when:
1. in March 2007, he was verbally counseled for failing to follow leave policies when his wife called in for him because he was incapacitated because of his medication;
2. in July 2007, his request for reasonable accommodation in the form of telework was denied;
3. in August 2007, his manager told him that he was not Rating Veterans Service Representative (RVSR) material;
4. in January 2008, he learned that a RVSR position offered to him had been withdrawn.
5. on May 20, 2008, his request for reasonable accommodation in the form of a change of duty hours was denied;
6. on May 23, 2008, he was advised of his non-selection for the position of RVSR; and
7. on June 11, 2008, he was issued a Counseling Memorandum pertaining his behavior during a meeting on May 20, 2008.
Following the investigation into his formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 27, 2010, the AJ issued a decision by summary judgment in favor of the Agency.
In reaching this decision, the AJ found the evidence of record established the following facts. On an unspecified date in March 2007, Complainant's wife called his immediate supervisor ("S1") to tell her he was ill and could not report to work. The next day, the supervisor verbally counseled Complainant that he needed to call in sick himself unless he was totally incapacitated. Complainant found the supervisor's counseling to be unnecessary and hurtful.
In July 2007, following a landslide that significantly damaged his home in Huntington, Complainant orally requested to his manager ("S2") that he be permitted to telework from the Agency's facility in Beckley, West Virginia, because he was staying at his parents' home in Beckley until his own home could be repaired. He also stated that the landslide caused him to experience intense PTSD symptoms and he had been diagnosed with a panic disorder and depression. Complainant stated that S2 denied his request, questioning whether he could be productive in Beckley and if it would be cost effective to ship files to him there. S2 admitted denying Complainant's request because she believed it "had nothing to do with a medical condition. It was something to do with the house was on a hill that was collapsing, and he needed to do some kind of construction to it. At that time, after talking to the Director, we were not able to accommodate that request to work from home in another city."
Once his request to work from Beckley was denied, Complainant said he asked whether he could have a larger cubicle in Huntington to help curb the heart palpitations he was experiencing from his panic disorder. He claims S2 told him the "everyone wants a larger cubicle." Complainant stated that he was so ashamed by her comment that he dropped the matter. S2 stated that she requested that Complainant provide medical documentation to support his request, but he never did so. Complainant denies being asked to provide medical documentation.
In July 2007, Complainant also applied for an RVSR position but was not selected. He said that in August he discussed his interview and writing sample with S2 in an effort to solicit suggestions for how he could improve the next time he applied. During this discussion, Complainant stated that S2 stated that his writing sample was not RVSR material. Complainant believed this criticism reflected the hostility that S2 felt towards him because of his disabilities.
In November 2007, Complainant again applied and was interviewed for another RVSR position. In December, Complainant was selected for the position and the Director asked him about going to RVSR training in Florida. A week later, however, the Director withdrew the offer of the RVSR position. Complainant believed the offer was withdrawn because of management's lack of faith in his ability to function as an RVSR because of his PTSD.
The Staff Assistant ("SA") to the Director stated that he recalled that Complainant was going to be selected for a promotion to the RVSR position, but subsequently they were informed by upper management that the position was no longer available because of a change in the mission.
On May 8, 2008, Complainant made a verbal request to S1 for reasonable accommodation in the form of changing his duty hours to a later start time so he could go to scheduled medical appointments. S1 stated that Complainant was frequently tardy to work because of doctors' appointments and oversleeping. She indicated that she was flexible about letting him make up the time so he did not have to use leave, but believed she was under no obligation to do that because he had not made a formal accommodation request. S1 stated that Complainant decided not to make a formal request for accommodation (schedule change) because he was afraid it would stand in the way of him getting one of the RVSR positions for which he had applied. Complainant stated that it was S1 who discouraged him from requesting a "formal" accommodation because she said he might be perceived as "weak" and it would affect his chances to be selected for one of the RVSR positions.
On May 20, 2008, Complainant reported late to work and asked S1 if he could work late to make up for the time. According to Complainant, S1 responded by asking him if he was really going to work as he had 60 cases on his desk that needed to be worked on. According to S1, Complainant responded that the cases on his desk were not his problem, but management's problem. S1 then told him that he could not stay late and must sign out at his regular time. When Complainant left that day, she said he saluted her.
On May 23, 2008, Complainant was again notified of his non-selection for another RVSR position. The selecting official stated that a panel reviewed the applications, conducted interviews, ranked the candidates and forwarded a certificate with the names of eight ranked candidates, including Complainant, to him for a final decision. He stated that he selected the top four candidates. Complainant was not among the top four ranked candidates, so he was sent a notice of non-selection. However, the selecting official stated that some weeks later a mission change occurred requiring more RVSRs and the remaining four candidates on the certificate, including Complainant, were selected effective June 22, 2008.
On June 11, 2008, S1 issued Complainant a counseling memorandum regarding their interaction on May 20. S1 denied it was an official counseling memorandum, but rather written "documentation" of behavior she felt was insubordinate and inappropriate.
Based on these facts, on September 27, 2010, the AJ issued a decision by summary judgment in favor of the Agency. First, the AJ assumed that Complainant met the definition of a qualified individual with a disability within the meaning of the Rehabilitation Act. However, the AJ determined that that the evidence of record did not support Complainant's claim that he was subjected to harassment sufficient to create a hostile work environment because of his disabilities. Specifically, the AJ concluded that the incidents of harassment alleged by Complainant, even considered together, were neither so severe nor pervasive so as to create a hostile work environment. The AJ found that Complainant has provided with a flexible schedule and was not disciplined for his frequent tardiness. Moreover, the AJ found that Complainant never provided any medical documentation to management to support his need for accommodation. While he was denied his request to telework, the AJ concluded that the request was because of the damage to his home and was not a request for reasonable accommodation. The AJ found that the alleged derogatory comments by management were not reflective of discriminatory animus on their face. Finally, he determined that the Agency provided legitimate reasons for Complainant's non-selection for several RVSR positions and noted that he was eventually selected for one of the positions in June 2008. In sum, the AJ concluded that Complainant failed to prove that he was subjected to harassment/hostile work environment because of his disabilities.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
ANALYSIS AND FINDINGS
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. 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 does not sit as a fact finder. Id. 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. A disputed 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. Catreet, 477 U.S. 317, 322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of a case. If a case can only be resolved by weighing conflicting evidence, a hearing is required.
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmond v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Department of Justice, EEOC Request No. 05940339 (February 24, 1995). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives complainant of a full and fair investigation of her claims." Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575 (March 26, 1998); see also Peavley v. United States Postal Service, EEOC Request No. 05950628 (October 31, 1996); Chronister v. United States Postal Service, EEOC Request No. 05940578 (April 23, 1995). The hearing process is intended to be an extension of the investigative process, designed to "ensure that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses." See EEOC Management Directive (MD) 110, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. � 1614.109(d) and (e).
As an initial matter, we find that the AJ's framing of Complainant's claims was incomplete. In her decision, the AJ only analyzed Complainant's complaint as a harassment/hostile work environment claim, while declining to address his disparate treatment claims concerning the January and May 2008 non-selections for the RVSR positions, as well as his denial of reasonable accommodation claims2 concerning his requests for telework, a larger cubicle and a change in duty hours or more flexible work schedule.
As a result of the deficiencies in the framing of Complainant's claims, there remain a number of issues of material fact that require resolution at a hearing. A hearing is necessary for the AJ to evaluate the credibility of the witnesses concerning Complainant's requests for reasonable accommodation as the accounts of management and Complainant differ. Complainant claims that sometimes S1 "informally" accommodated Complainant's disabilities with some flexibility on his schedule on a discretionary basis, but that she actively discouraged Complainant from making a formal request for a change in schedule because she said it could result in Complainant's non-selection for an RSVR position as he would perceived as "weak." However, Complainant asserted that the 15-minutes of flex time provided him by S1 did not adequately accommodate the effects of his disability-related difficulties in sleeping and waking, as well as his need for frequent medical appointments. S1 states she almost always accommodated him, Complainant says differently. S1 also denies discouraging Complainant from formally requesting an accommodation, stating it was Complainant's own decision not to do so.
Regarding his telework request and need for a larger cubicle, Complainant argues that these requests were clearly disability-related and that was known to Agency management. The responsible managers, on the other hand, stated that they believed the requests related only to the inconvenience of commuting following the destruction of Complainant's home in the landslide. Agency officials further stated that they requested medical documentation from Complainant in support of his accommodation requests but he never provided any. Complainant asserts that Agency officials did not request medical records from him, and instead failed to engage in the interactive process and actually discouraged Complainant from making a reasonable accommodation request.
In addition, credibility determinations are necessary to resolve why Complainant's initial selection in January 2008 for an RSVR position was later rescinded. While the Agency indicates it was the result of some sort of mission adjustment, this vague explanation is challenged by Complainant's assertions that the offer was withdrawn because of management's lack of faith in his ability to function as an RVSR because of his PTSD as evidenced by comments from S1 and S2. There also is little explanation provided by the Agency for Complainant's initial non-selection in May 2008 other than his lower ranking than the selectees, without much evidence about how those rankings were determined.
In summary, we conclude that the AJ's finding of no discrimination could not be reached except by resolving significant conflicting evidence in the Agency's favor, an action that is not appropriate in a grant of the Agency's motion for summary judgment. In light of the disputed issues of material fact in the instant record, issuance of a decision without a hearing was not warranted under 29 C.F.R. � 1614.109(g).
Accordingly, we VACATE the Agency's final order and REMAND the matter to the Agency for further processing in accordance with the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC's Cleveland Field Office the request for a hearing, as well as the complaint file, within thirty (30) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit of the Cleveland Field Office. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
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
June 15, 2012
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, 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 2007-2008, we will apply the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant was an "individual with a disability."
2 Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)-(p); EEOC's Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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