EEOC Appeal No. 0120151012
04-18-2017
Nakesha D. v. Dep't of Health & Human Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nakesha D.,1
Complainant,
v.
Thomas E. Price, M.D.,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120151012
Hearing No. 531-2014-00113X
Agency No. HHS-IHS-0292-2013
DECISION
On January 12, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 6, 2014, final decision2 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly dismissed Complainant's hearing request as a sanction; and (2) whether the Agency properly determined that the preponderance of the evidence in the record does not establish that Complainant was subjected to discrimination based on race and/or disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Project Management Specialist in the Agency's Office of Clinical and Preventive Services (OCPS), Improving Patient Care (IPC) Program at the Agency's Headquarters facility in Rockville, Maryland. Complainant's first-line supervisor was the IPC Director (S1), and her second-line supervisor was the OCPS Director (S2). Complainant stated that she does not have good communication with S1. According to Complainant, S1 avoids her and fails to respond to work-related emails. A Caucasian former IPC coworker (C1) stated that S1 did not respond to her emails and, at times, did not attend scheduled meetings with her.
According to Complainant, she has Crohn's disease, chronic gastroesophageal reflux disease (GERD), chronic irritable bowel syndrome (IBS), and pancreatic divisum. Complainant stated that on April 3, 2013, she informed S1 about her recent Crohn's disease diagnosis. S1 denied knowledge of any specific medical condition other than a "gastrointestinal issue" until mid-May 2013. Complainant averred that during a flare up of her gastrointestinal (GI) conditions, she experiences epigastric pain, nausea, frequent restroom use, and abdominal and GI pain, which hinders her ability to perform major life activities such as working.
On February 28, 2013, S1 issued Complainant a fiscal year 2012 performance appraisal with an overall numerical rating of 3.6, which is in the fully successful range. S1 stated that Complainant's work performance did not go above and beyond his expectations to warrant an exceptional rating. S2 averred that Complainant does not provide as high a level of customer service as her coworkers. According to Complainant, she does not contest receiving a fully successful rating, but her numerical rating should have been higher because there has been a lot of turnover in IPC, so she has been assigned extra duties. Complainant averred that S1 did not give her a mid-year evaluation during fiscal year 2012, so she had little guidance about her performance.
Complainant alleged that she submitted a rebuttal to her performance appraisal to S1, but she said that he did not respond or give her a signed copy of her performance appraisal. S1 denied that Complainant submitted a rebuttal but averred that Complainant submitted a document entitled "Explanation letter," which he filed with Complainant's performance appraisal. The record contains an April 5, 2013, letter from Complainant to S1, which states, in relevant part, "I'm submitting this letter of explanation to be included with my 2012 end of year PMAP rating." S1 admitted that he did not provide Complainant with a signed copy of her performance appraisal, but he stated that he did not provide two other American Indian IPC staff members with a signed copy, either.
Complainant stated that she believed that her race was a factor in her performance appraisal because she is the only African-American on the team and because she is the only employee who S1 fails to communicate with. According to Complainant, she did not think that her disability was a factor in the issuance of the performance appraisal because she had just been diagnosed with Crohn's disease when she was issued the appraisal.
According to Complainant, on May 13, 2013, she requested two weeks of advanced sick leave from S1. Complainant averred that she needed the time off because she was having a Crohn's disease flare up and needed to be at home. S1 stated that on May 13, 2013, Complainant emailed him a request for 120 hours of advanced sick leave, a May 10, 2013, doctor's note, which stated that Complainant was under a doctor's care and could return to work with no restrictions on May 28, 2013, and a prescription pad note, which stated, "[Complainant] has a flare up of her GI condition and may be excused from work for 10 days."
According to S1, these documents were not administratively acceptable because the doctor did not state the prognosis, diagnosis, or anything about the duration of the condition. S1 requested additional documentation on May 13, 2013, and Complainant provided additional documentation on May 14, 2013. S1 averred that the new doctor's note still did not state a diagnosis or prognosis other than "GI condition." S1 stated that Complainant got very upset when he requested additional documentation. According to Complainant, the original medical documentation that she provided for her advanced sick leave request should have been sufficient.
Complainant stated that she followed up with S1 before going on sick leave, while she was out, and after she returned to work. Complainant alleged that S1 did not discuss her advanced sick leave with her until August 2, 2013, when he approved her request for May 2013 and a new request for August 12 through 17, 2013. S1 stated that the Human Resources representative (HR1) was out on extended leave in May 2013, which delayed the ultimate approval of Complainant's request for advanced sick leave. According to Complainant, her race was a factor in the delay because S1 does not communicate with her but communicates with her colleagues, who are American Indian Caucasian.
On July 8, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and disability (Crohn's disease, gastritis, and chronic IBS) when:
1. On February 28, 2013, Complainant received her performance appraisal, which contained a numerical rating of 3.6. Complainant submitted a rebuttal to her supervisor to be included with the performance appraisal. Her supervisor did not respond to her rebuttal or give her a signed copy of her performance appraisal; and
2. On April 3, 2013, Complainant requested two weeks of advanced sick leave as a reasonable accommodation for her medical conditions, but her supervisors did not respond to her request.
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 AJ. Complainant requested a hearing, but the AJ denied the hearing request as a sanction when Complainant failed to fully respond to the Agency's discovery requests and comply with the AJ's Order to Compel. The AJ remanded the complaint to the Agency, and 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 her to discrimination as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
Complainant makes no contentions on appeal.
In response to Complainant's appeal, the Agency requests that its final decision be affirmed. The Agency contends that the AJ properly dismissed Complainant's hearing request as a sanction for Complainant's failure to cooperate during the discovery process. The Agency also argues that Complainant's performance appraisal was not racially discriminatory. Finally, the Agency contends that it did not discriminate against Complainant in its response to her request for advanced sick leave.
ANALYSIS AND FINDINGS
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 Chapter 9, � VI.A. (Aug. 5, 2015) (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").
Dismissal of Hearing Request as a Sanction
An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3). The sanctions available to an AJ for failure to provide requested relevant information include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. See Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). These sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would serve this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the complainant has engaged in contumacious conduct, not simple negligence. See Thomas v. Dep't of Transportation, EEOC Appeal No. 01870232 (Mar. 4, 1988).
Here, we find that it was not an abuse of discretion for the AJ to dismiss Complainant's hearing request after Complainant failed to cooperate in discovery and comply with the AJ's Order to Compel.
Disparate Treatment
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). She 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. 13, 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Complainant alleged that she was discriminated against when she was issued a performance appraisal with a 3.6 numerical rating and when S1 did not respond to her rebuttal statement or provide her with a signed copy of the appraisal. The Agency provided a legitimate, nondiscriminatory reason for the rating, which was that Complainant did not go above and beyond what was expected of her. The Agency also proffered a legitimate, nondiscriminatory reason for not responding to Complainant's "rebuttal statement," which is that Complainant stated that she wanted the document filed with her appraisal and did not request a response from S1. Finally, the Agency's legitimate, nondiscriminatory reason for not providing Complainant with a signed copy of her appraisal is that he did not do so for any of his subordinates. The preponderance of the evidence in the record does not establish that these legitimate, nondiscriminatory reasons were pretextual.
Complainant also alleged that she was discriminated against when her supervisors did not respond to her advanced sick leave request. We will separately analyze this claim as a reasonable accommodation claim below, but first we consider the claim in the disparate treatment context. The Agency provided legitimate, nondiscriminatory explanations for the delay. Specifically, Complainant did not provide specific medical documentation with her request, and HR1 was on extended leave, which delayed the approval of the request. The preponderance of the evidence in the record does not establish that these proffered reasons were pretext for discriminatory animus.
Reasonable Accommodation
In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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. 29 C.F.R. �� 1630.2(c) and (p). "The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. � 1630.2(m).
Upon a complainant's request for reasonable accommodation, an employer may require that documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. See EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Number 915.002, Question 6, (as revised Oct. 17, 2002). When an employee's disability or need for an accommodation is not known or obvious, an employer may ask an employee for reasonable documentation about his or her disability, limitations, and accommodation requirements. See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, (July 27, 2000) (web version) at 14.
Here, we find that the delay in approving Complainant's request for advanced sick leave was attributable to her failure to comply with management's request for documentation about her disability, her limitations, and her need for accommodation. Accordingly, Complainant has not established that she was denied a reasonable accommodation in violation of the Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision because the AJ's sanction was not an abuse of discretion and the preponderance of the evidence in the record does not establish that discrimination occurred.
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 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
4-12-2017
__________________
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 Agency does not contest the timeliness of Complainant's appeal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
01-2015-1012
7
0120151012