0120102902
02-17-2012
Rodney L. Pelangka, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Rodney L. Pelangka,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120102902
Agency No. 09-00318-01244
DECISION
On June 29, 2010, Complainant filed an appeal from the Agency’s May 27,
2010, final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 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 decision which found that Complainant had not proven that he was
discriminated against as he alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected
to discrimination and harassment/hostile work environment based on
his national origin, age, disability, and/or reprisal when his medical
documentation was not accepted, he was told that maybe he was too old to
perform his position, when he was placed on Absent Without Leave (AWOL)
status, and when he was placed on suspension for seven days without pay.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Painting Worker at the Agency’s Facilities Department, Marine Corps
Base Hawaii facility in Kaneohe Bay, Hawaii. Prior to starting this
position, he worked as a Security Guard for the Agency. On April 10,
2007, while working in his security guard capacity Complainant sustained
an on-the-job injury to his right shoulder and back while trying to
stop a runaway government truck. He underwent surgical repair to this
rotator cuff.
On December 11, 2007, shortly after starting his painting position,
Complainant reinjured his shoulder and back while lifting wood and a
billboard on the job. He underwent another surgery to repair a tear to
his right shoulder. His back injury however did not improve and got worse.
Complainant filed a claim with the Office of Worker’s Compensation
(OWCP). He also submitted three physician’s notes to his supervisor
(S1). S1 passed the medical documentation along to Complainant’s
second-line supervisor (S2).
On January 26, 2008, Complainant was placed on Leave without Pay (LWOP)
because his injury was covered by workers compensation. On September 30,
2008, however, OWCP issued a letter informing Complainant that they were
terminating his wage loss benefits effective that date. On November 25,
2008, Complainant requested reconsideration of the decision to terminate
his wage and loss benefits. He submitted medical documentation to
support his request.
In an email dated November 3, 2008, the Human Resources Department
(HR) informed Complainant that they had received medical documentation
for Complainant’s absence until November 13, 2008. Complainant was
told via the message that he could take up to 12 weeks of leave under
the Family and Medical Leave Act (FMLA) and a form was attached for
that purpose. Complainant’s wife delivered documentation to the
Agency on behalf of her husband. She was told that Complainant had to
submit medical documentation and had to contact S1 regarding his leave.
The HR specialist conveyed to Complainant’s wife that Complainant had
to contact his supervisor immediately to request leave, or he could be
put on AWOL. On November 14, 2008, Complainant’s wife gave the HR
specialist a completed form and a doctor’s note. The form indicated
that Complainant could sit, stand, and walk 0 hours per day. Based on
this documentation it was determined that Complainant could not be given
light duty. Complainant’s wife was given another form to complete.
She returned the form in late December or early January. The form
indicated that Complainant was in an off duty status.
On December 9, 2008, Complainant was sent a letter from HR informing
him that he had been placed on absent without leave (AWOL) status,
effective November 17, 2008. The letter indicated that he had been
repeatedly contacted via email and telephone directing him to contact
his supervisor to request leave; and because he failed to respond by the
date set forth in the email, he had been put on AWOL. He was placed on
AWOL for pay periods January 31, through March 28, 2009, and for the pay
period ending May 9, 2009. Complainant’s attorney responded to the AWOL
letter and indicated that: Complainant currently had OWCP claims pending;
that Complainant’s supervisors were aware of his medical problems; that
he had provided documentation that showed that he was unable to work;
and he had previously requested light/limited duty work.
Nevertheless, on December 15, 2008, Complainant was issued a Notice of
Proposed Removal, based on excessive AWOL. The Notice indicated that HR
informed him that he should have requested leave through his supervisor
and given his supervisor medical documentation.
On March 17, 2009, Complainant’s fourth-level supervisor issued a Notice
of Decision on the Proposed Removal, mitigating it to a suspension of
seven calendar days. Complainant’s SF-50 shows that he was placed
on suspension, effective March 30, 2009. It gives the reason for the
suspension as failure to properly request leave for unplanned absences.
In response to the Notice of Proposed Removal, Complainant’s attorney
indicated that Complainant had been told by S1 that he had to be 100% to
return to work, and not have any restrictions; and that Complainant’s
computer was broken, so he had not been getting his emails. The attorney
also claimed that Complainant had provided medical documentation as
evidenced by Form WH-380, dated December 4, 2008.
On April 16, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against him and subjected him to harassment and
a hostile work environment on the bases of national origin (Filipino)1,
disability (shoulder and back), age (50), and reprisal for prior protected
EEO activity when:
1. two Human Resources Specialists did not accept his medical documents
between late September and early October 2008;
2. a Human Resources Specialist said, “maybe you’re too old for
this job” during a phone conversation with Complainant in September
or October 2008;
3. on November 17, 2008, he was placed in an Absent Without Leave
status; and
4. he was reprised against when on March 17, 2009, he was notified that
he would be suspended for seven days without pay.2
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right
to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with Complainant’s request, the Agency issued a final
decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected him
to discrimination as alleged. The FAD found that Complainant had failed
to establish that he was subjected to reprisal with respect to issue 4,
because S4 did not know that Complainant had filed an EEO complaint or
had any prior EEO complaint activity.
The Agency also found that Complainant failed to demonstrate that he
was a qualified individual with a disability, as his records showed
that there was no reasonable accommodation that would have enabled
him to perform the duties of his position in the foreseeable future.
As such, Complainant failed to show that he could successfully perform
the essential functions of his position with or without accommodations.
With respect to claim 1, the Agency explained that Complainant’s
medical documentation was accepted even though it was not adequate.
The HR specialist indicated that Complainant submitted paper work that
did not provide any information regarding his injuries or limitations.
He simply provided a stack of documentation which indicated that he was
“out of work.” The HR specialist indicated that she attempted to
contact him via email but was unsuccessful. She maintained that even when
he returned a completed Form CA-17, via his wife, the form contained no
details regarding his limitations. The HR specialist maintained that she
explained to Complainant’s wife that a physician needed to complete the
form to show what Complainant was capable of doing in order to provide
him light duty as he had requested, and that the form was returned to
HR and Complainant’s wife indicated that Complainant’s attorney had
told them to submit it “as is.”
Regarding claim 2, wherein Complainant maintained that he was told that
maybe he was too old for his job, the HR specialist denied making this
statement or anything to this effect.
With regard to claim 3, the Agency explained that Complainant was
placed on AWOL because there was no medical documentation which listed
his limitations and his OWCP claim had been terminated. She indicated
that the only thing that she received from Complainant were slips that
indicated that he was out of work. She maintains that she told him
to let his supervisor know that his OWCP claim had been terminated
and that he needed to request leave and provide documentation through
his supervisor. She explained that she received a doctor’s slip on
November 3, 2008, which indicated that Complainant was excused from work
through November 13, 2008. She sent him an email explaining that he could
apply for leave under the Family and Medical Leave Act. She also sent
him an email explaining that if he did not contact his supervisor and
fill out a leave slip, he would be placed on AWOL the next day. And,
while Complainant’s wife did return a form CA-17, it did not contain
medical information so the HR specialist told Complainant’s wife to
have Complainant contact his supervisor regarding leave. When he failed
to do so the HR specialist instructed S1 to place Complainant on AWOL.
Finally, with regard to claim 4, Complainant’s suspension, S4 indicated
that initially HR recommended that Complainant be removed for failure
to contact S1 regarding his leave. S4 indicated that he reduced it to a
suspension when he found out that Complainant’s workers’ compensation
claim had been approved retroactively and based on Complainant’s prior
work history. Accordingly, the Agency found that Complainant failed
to show that its articulated legitimate, nondiscriminatory reasons were
pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal Complainant contends that it is undisputed that he is an
individual with a disability. He maintains the Agency failed to
enter into the interactive process after he requested a light duty
assignment. Complainant maintains that he was told that he had to be 100%
before he could return to work. He alleges that he also spoke with
HR regarding a reasonable accommodation. Complainant indicates that
his request was denied even though the Agency was allowing two other
painters to work in a light duty status. Complainant also maintains
that he suggested that as an alternative reasonable accommodation he be
allowed to take off from work to continue with medical treatment, pending
surgery and back treatments authorized by OWCP. Further Complainant
maintains that he was issued the proposed removal, put on AWOL status
and suspended for seven days because of his disabilities.
STANDARD OF REVIEW
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. (November 9, 1999) (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
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must
first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has
established a prima facie case, the burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the Agency is successful, the burden reverts back to the Complainant
to demonstrate by a preponderance of the evidence that the Agency’s
reason(s) for its action was a pretext for discrimination. At all times,
Complainant retains the burden of persuasion, and it is her obligation
to show by a preponderance of the evidence that the Agency acted on
the basis of a prohibited reason. St. Mary’s Honor Center v. Hicks,
509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 715-16 (1983).
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 (December 6, 1996). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell Douglas,
supra, to establish a prima facie case of reprisal, s/he must show:
(1) s/he engaged in a prior protected activity; (2) the official
acting on behalf of the Agency was aware of the protected activity;
(3) s/he was subjected to adverse treatment by the Agency; and (4)
a nexus, or causal connection, exists between the protected activity
and the adverse treatment. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000).
In the instant the case, the Commission finds that even if we assume
arguendo that Complainant established a prima facie case of discrimination
as to all bases, the record demonstrates that the Agency articulated
legitimate nondiscriminatory reasons for its actions, namely, that with
respect to claim 1, his documents were accepted but he was repeatedly
told that they were incomplete; for claim 2, the HR specialist denied
making the statement that he was too old and there were no witness to
support that this occurred; regarding claim 3, he was placed on AWOL
because he failed to contact his supervisor even after being repeatedly
advised to so; and finally with regard to claim 4, the evidence shows
that S4 was not aware of Complainant’s prior EEO activity when he
mitigated Complainant’s proposed removal to a seven day suspension.
Further, we find the record shows that Complainant attempted to
comply with the requests of the Agency, but the Agency was not clear in
communicating what medical documentation was needed or why it was needed
and failed to communicate in a medium that would assure that Complainant
received its requests, i.e., perhaps by sending requests by certified
mail instead of email, we find that despite all of this; Complainant has
not shown that the Agency’s reasons were pretext for discrimination
or that discriminatory animus was involved regarding this matter.
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. 29 C.F.R, §§ 630.2(0)
and (p). In order to be entitled to protection from the Rehabilitation
Act, Complainant must make the initial showing that he is a “qualified
individual with a disability.” Assuming arguendo that Complainant is
an individual with a disability within the meaning of the Rehabilitation
Act, we agree with the Agency that Complainant has not proven, by a
preponderance of the evidence, that he was qualified. A “qualified
individual with a disability” is an individual with a disability
who satisfies the requisite skill, experience, education and other job
related requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodation, can perform
the essential functions of the position. 29 C.F.R. § 1630.2(m).
We find that Complainant did not show that the Agency failed to
provide him with a reasonable accommodation. We find that based on the
information that he provided, which indicated that he could do no type
of work, the Agency was correct in finding that Complainant failed to
show that he could successfully perform the essential functions of his
position with or without an accommodation.
To establish a claim of harassment a complainant must show that:
(1) they belong to a statutorily protected class; (2) they were
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on their statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive as
to alter the conditions of [complainant's] employment and create an
abusive working environment.” Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice
No. 915.002 at 6 (Mar. 8, 1994).
With respect to element (5), an employer is subject to vicarious
liability for harassment when it is created by a supervisor with immediate
(or successively higher) authority over the employee. See Burlington
Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93
(1998). However, where the harassment does not result in a tangible
employment action the agency can raise an affirmative defense, which is
subject to proof by a preponderance of the evidence, by demonstrating:
(1) that it exercised reasonable care to prevent and correct promptly
any harassing behavior; and (2) that complainant unreasonably failed to
take advantage of any preventive or corrective opportunities provided
by the agency or to avoid harm otherwise. See Burlington Industries,
supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,
1999). This defense is not available when the harassment results in a
tangible employment action (e.g., a discharge, demotion, or undesirable
reassignment) being taken against the employee. In the case of co-worker
harassment, an agency is responsible for acts of harassment in the
workplace where the agency (or its agents) knew or should have known of
the conduct, unless it can show that it took immediate and appropriate
corrective action. Id.
We find that Complainant has not demonstrated that he was subjected to
a hostile work environment. The Commission finds these incidents even
when viewed collectively were not sufficiently severe or pervasive enough
to alter the conditions of his employment and create an abusive working
environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Servs., Inc., 23 U.S. 75 (1998).
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 FAD which found that Complainant failed to show that he was
discriminated against as was alleged.
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 (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 (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
___2/17/12_______________
Date
1 Complainant complaint indicated that he was discriminated against
based on race (Filipino). The Commission, however, views this as a
designation of national origin.
2 Complainant also alleged that he was discriminated against on the
bases or race, age, and disability when on December 1, 2008, he received
a Letter of Proposed Removal from the Agency for AWOL. This claim was
dismissed for failure to state a claim and untimely EEO Counselor contact.
Complainant also alleged he was discriminated against based on the same
bases when he was prevented from receiving benefits which affected his
workers’ compensation on September 30, 2008. This claim was dismissed
for failure to state a claim. Complainant does not, on appeal, contest
the dismissal of these claims. Accordingly, we exercise our discretion
to entertain only those issues which are specifically raised on appeal,
and will not address the dismissal. See EEOC Management Directive on
29 C.F.R. Part 1614 (MD-110), at Ch. 9, §IV.A. (Nov. 9, 1999).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120102902
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102902