0120130877
04-10-2017
Linn L.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Linn L.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120130877
Hearing No. 530-2010-0126X
Agency No. P20090237
DECISION
Complainant timely filed an appeal from the Agency's November 14, 2012, final order concerning her 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 AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ's) issuance of a decision without a hearing was proper; (2) whether Complainant established she was denied a reasonable accommodation for a disability; and (3) whether Complainant established discrimination on the bases of race and sex.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Correctional Officer at the Agency's Federal Detention Center in Philadelphia, Pennsylvania. On February 22, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and disability (breast cancer) when she was denied a reasonable accommodation. The Agency accepted the complaint for investigation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an AJ or alternatively an immediate decision from the Agency based on the ROI. Complainant timely requested a hearing. Thereafter, her case was forwarded to the appropriate EEOC District Office and assigned to an Administrative Judge.
On June 9, 2010, the Agency filed a Motion for Summary Judgment requesting that the AJ issue a decision without a hearing, to which Complainant responded on February 18, 2011. On October 11, 2012, the AJ granted the Agency's motion and issued a decision without a hearing finding that Complainant did not establish discrimination on the bases of disability, race, and sex. Subsequently, the Agency issued a final order adopting fully the AJ's decision. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency's failure to timely comply with her request for disability accommodation forced her to go unpaid for several months. See Complainant's Brief on Appeal at 1. She further contends that, when she did receive limited accommodations, she was forced to work in a hostile work environment because the administrative staff resented her for filing an EEO complaint and requesting disability accommodation. Id. Moreover, Complainant contends that the Agency's failure to timely accommodate her disability resulted in negative remarks regarding absences for last-minute and unexpected medical treatments. Id. Finally, Complainant requests that the Commission reinvestigate her case and states she is willing to take the necessary steps to prove her case. Id. at 2. The Agency did not submit contentions on appeal. The Agency did not file a reply to the appeal.
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) (which provides that an AJ'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 or reject the AJ's, and the 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 Chap. 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
Issuance of a Decision without a Hearing
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.
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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find the record is adequately developed, no genuine issues of material fact remain, and no fact-finding is necessary. We also find that Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond to the Agency's motion. Thus, we find the AJ's issuance of a decision without a hearing was proper.
Reasonable Accommodation
Medical information in the record reflects that on August 27, 2008, Complainant was diagnosed with stage 2 breast cancer. See ROI at Exhibit 15. According to Complainant, she informed management of her condition within a week of receiving her diagnosis and requested reasonable accommodation for when her chemotherapy regimen began. As a result of her diagnosis, Complainant underwent surgery and subsequently received treatment with chemotherapy, which began on October 16, 2008, and was expected to last until approximately February 2009. Id. At the completion of chemotherapy, Complainant was expected to receive radiation for approximately six weeks. Id. Due to the chemotherapy, Complainant experienced nausea, vomiting, and fatigue, which her physician stated could significantly affect her work. Id.
Complainant stated that, at the time of her initial request, she explained to management that she was not sure as to what would happen, but she requested a reasonable accommodation once she started "chemotherapy because of the side effects . . . ." See ROI, Ex. 7, p. 4. For example, in an email dated September 26, 2008, Complainant sent a letter to her then first-level supervisor (S1) requesting to be placed on the morning watch schedule during her upcoming treatments. She also sought permission to wear a scarf should she experience extreme hair loss. Complainant alleged that she never received responses from her first and second-level supervisor (A-2) to verbal and written requests submitted in October and November for light-duty and a schedule change. See ROI, Ex. 12, p. 4.
In her affidavit, Complainant was asked who denied her request for reasonable accommodations. She responded:
That is kind of a tough question. I never really got a denial. They never responded to me. I didn't know what else to do. That is why I took steps to go further, because I never received any type of response. I was pretty much ignored.
See ROI, Ex 7, pp. 5 - 6.
When further asked if she "[n]ever received any emails, phone calls, no response to any messages that you left? Is that what you are saying? They didn't respond at all?" Complainant contradicted herself by stating that:
They would respond after 2 or 3 requests from me. After 2 or 3 requests from me, I would go to them verbally or with some kind of written communication and then they would say, oh we need this documentation. I would bring that documentation to them from my oncologist and then I wouldn't hear from them again. Then I would go to them again and request again and they would say, well we need this documentation. I would bring them that documentation but they would never respond to me. That was a couple of times and I do have notes and emails and things that I have submitted back and forth. I do have those copies.
Id.
The record indicates that Complainant approached C-1, the Employee Services Manager, in or around late September or early October 2008 and indicated that she (Complainant) was being treated for breast cancer. See ROI, Ex. 10, p. 2. C-1 advised Complainant to speak to A-2 "to seek some sort of adjustments that might be made that could accommodate her balancing her treatment with her work." Id. at p. 3.
The record indicates that Complainant spoke to A-2 and requested to remain on morning watch (11:00 pm to 7:00 am), to which Complainant acknowledged that A-2 responded that he would allow the request, stating "it was fine." See ROI, Ex. 12, p. 4; Ex. 7, p. 5. A-2 remembers this conversation taking place in October or November 2008. Complainant's Daily Assignments records show that she was placed on morning watch consistently from October 7, 2008 through March 19, 2009. See ROI Exhibit 3, Complainant's Daily Assignments, pp. 9-12.
Next, Complainant requested to be placed on a single-tier unit versus a multi-tier unit due to her joint pain and fatigue. In a medical note dated October 30, 2008, Complainant's doctor indicated that Complainant "is to perform light duty only until further notice." See ROI, Ex. 15, p. 7. According to Complainant, this note was submitted to management on November 6, 2008. The floor requested by Complainant and where the Agency ultimately placed her was the seventh floor. Id. See also Exhibit 3, Complainant's Daily Assignments, pp. 9-11 (showing Complainant working 7 North from December 10, 2008 to March 19, 2009). A-2 stated that the seventh floor housing unit is single-tiered, where the other housing units have two tiers.
Finally, in a medical note dated November 12, 2008, Complainant's doctor stated that Complainant needed Fridays and Saturdays off from work, as Complainant received chemotherapy on Thursdays. See ROI, Ex. 15, p. 8. The record indicates that this note was provided to the Agency around November 13, 2008. The Agency granted this request on December 2, 2008. See Exhibit 3, Complainant's Daily Assignments, pp. 9-11 (showing Complainant with Fridays and Saturdays off from December 10, 2008 to March 21, 2009).
The record reflects that Complainant's requests were all formally approved by letter dated December 2, 2008. See ROI, Exhibit 19. Prior to her accommodations being approved, Complainant participated in a November 20, 2008, meeting with the Associate Warden. Complainant prepared a November 25, 2008, memorandum summarizing her meeting with the Associate Warden. In her memorandum, Complainant specified that she was seeking to work telephone or clerical duties or, in the alternative, in a single-level unit so she would not have to climb stairs due to joint pain. See ROI, Ex 16. She again asked that the Agency change her regular scheduled days off to Friday and Saturday to diminish the days she would need to call in to request unscheduled sick leave. Id. Finally, Complainant requested that she continue working the morning shift (from 11:00 pm to 7:00 am), as most of her treatments were scheduled in the morning or early afternoon. Id.
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. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). For purposes of our analysis, we will assume, without so finding, that Complainant is a qualified individual with a disability under the Rehabilitation Act.
Based on information in the record, we find that the Agency provided Complainant the accommodations she requested within a reasonable time period, and to the extent Complainant believes she was not accommodated, that belief is not supported by documentary evidence in the record. We note the following at the outset: Although Complainant timely notified management of her condition and the general need for an accommodation in August or September 2008, she did not need said accommodation until she began chemotherapy in October. We also note that these accommodations were not presented to management at the same time; for example, her request to remain on the morning watch apparently was made in October while her other requests were made in November. Finally, we note that management requested documentation from Complainant's doctors to support of her requests. The record shows that Complainant would make verbal requests, the Agency would request medical documentation, Complainant would provide documentation, and the Agency, at times, would seek clarification. The record reflects that as late as December 2, 2008, the day all of her accommodations were approved, meetings were still being held, i.e., the interactive process was still taking place.2 Complainant, understandably, was concerned about the pace of the Agency's processing of her requests, but we find no persuasive evidence that she was either denied a reasonable accommodation or that the Agency unreasonably delayed providing her with said accommodations.3
We note that several management officials expressed either not knowing that federal law requires all agencies to consider reasonable accommodations if necessary when an employee has cancer or has a history of cancer, or being unaware that the Agency has a reasonable accommodation policy. Therefore, we strongly urge the Agency to consider providing reasonable accommodation training to all management officials employed at its Federal Detention Center located in Philadelphia, Pennsylvania.
Discrimination Based on Race and Sex
Complainant further alleges the Agency's refusal to accommodate her condition was based on race and sex. In the absence of direct evidence of discrimination, as is the case here, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume Complainant has established prima facie bases of race and sex.
We now consider whether the Agency stated legitimate, nondiscriminatory reasons for its actions. Here, the Agency stated, and the record supports, that Complainant was not denied reasonable accommodation but instead was provided the accommodations she requested. We find the Agency's stated reason to be legitimate and nondiscriminatory.
Complainant must now present evidence showing that the Agency's stated reasons are pretexts based on her race and sex. To meet this burden of proof, Complainant stated that she believes race and sex were factors because a White male co-worker was accommodated for an injury he sustained doing extra-curricular activities outside of work, while she was diagnosed with a potentially life-threatening condition through no fault of her own. Given the record as a whole, we find that Complainant's proof of pretext is insufficient evidence of discrimination as she does not provide any specifics on the coworker, his condition, or the accommodations he allegedly was provided. Additionally, the management officials interviewed during the investigation did not recall any employee who fit the general description provided by Complainant. Therefore, we find Complainant did not establish discrimination based on race and sex.
Remaining Contentions on Appeal
In closing, we note that Complainant contends, in relevant part, that she had to endure a hostile work environment from administrative staff because she filed an EEO complaint and was perceived as seeking special treatment. Complainant further contends she received negative remarks for absences relating to last-minute and unexpected medical treatments. However, if Complainant believes she was subjected to a hostile work environment for filing an EEO complaint or seeking an accommodation and received negative remarks regarding unexpected absences, she should request EEO counseling and file a new complaint. These issues were not accepted for investigation as part of this complaint, and the record has not been developed such that a decision on these claims can be made at this time.4
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find the AJ's issuance of a decision without a hearing was proper; that Complainant did not establish she was denied a reasonable accommodation on the basis of disability; and that Complainant did not establish discrimination on the bases of race and sex. Accordingly, the Agency's final order is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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 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
_4/10/17_________________
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.
2 The record reveals that a conference call was held on December 2, between Complainant, C-1, A-2, and an Associate Warden. According to C-1, the purpose of the meeting was to clarify "whether there was any flexibility in the accommodation, if there was any more documentation, and if she was aware of all the other leave options available to her." See ROI, Ex. 10, p. 4.
3 We note in this regard that Complainant's request for light duty was vague. Therefore, we find it reasonable that the Agency would contact her doctor to determine what functions of her position Complainant could perform. We also note A-2's testimony that he did not have a funded position that merely monitored the telephones. ROI, Ex. 11, p. 11.
4 Complaint's contact with an EEO Counselor regarding these allegations shall be deemed timely if she initiates contact within 15 calendar days of her receipt of this decision.
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