U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harland B.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120130672 Agency No. IRS120135F DECISION On November 30, 2012, Complainant timely filed an appeal from the Agency's October 26, 2012, final decision (FAD) concerning his 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 Agency's FAD, addressing Complainant's disparate treatment claims, is AFFIRMED. However, the Commission's determination that Complainant was denied a reasonable accommodation and subjected to per se reprisal REVERSES the remainder of the FAD. ISSUES PRESENTED 1. Did Complainant prove by a preponderance of the evidence that he was subjected to disparate treatment discrimination and a hostile work environment based on his race (Caucasian), sex, disability and EEO activity? 2. Did Complainant prove by a preponderance of the evidence that he was denied reasonable accommodation for his disability, which restricts his ability to walk?2 3. Did Agency officials deter Complainant from requesting a reasonable accommodation, which constitutes per se reprisal? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contact Representative at the Accounts Management Section in Covington, Kentucky. On January 28, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), disability (restricted or limited ambulation), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On September 6, 2011 he was charged Absent Without Leave (AWOL); 2. On July 11, 2011, his supervisor shoved her high school ring in Complainant's face; 3. His supervisor threatened him with AWOL on a continuous basis; 4. In September 2011, his manager made the comment, "this is a woman's world" in order to intimidate him; 5. In 2010, his supervisor had a confrontation with him that almost became physical; 6. In 2010, his supervisor stormed into his cubicle and signed his aspect phone off and said, "You'll do what I say"; 7. His supervisor continues to restrict his ability to participate in overtime and credit hours. At the conclusion of an investigation into the allegations, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, 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 him to the alleged discrimination. CONTENTIONS ON APPEAL The Agency contends that the FAD should be affirmed because the Agency articulated legitimate, nondiscriminatory, reasons for the alleged adverse actions taken against Complainant. Further, the Agency contends that since Complainant did not demonstrate any discriminatory animus, he is similarly unable to show that any of the alleged adverse actions constituted a hostile work environment based on any of his protected classes. See generally, Agency Brief. ANALYSIS AND FINDINGS I. Complainant Did Not Prove Disparate Treatment Discrimination Based On Race, Sex And Disability Because He Did Not Show The Agency's Legitimate Non-discriminatory Reasons To Be Pretext For Discrimination Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination based on race, sex, and disability. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). We assume that Complainant established a prima facie case of race, sex and disability discrimination. See Wells v. Dept. of Veterans Affairs, EEOC Appeal No. 01A00032 (2000) (Noting that in cases where there has been an investigation and the agency articulates a legitimate, nondiscriminatory reason for its employment decision, the establishment of a prima facie case becomes irrelevant because there is enough evidence to make a decision based on the merits) (citing, U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983)). First, Complainant was charged AWOL for his absence from work on September 6, 2011 because he was scheduled to work, but upon arriving at the office, he noticed that the official schedule had not been changed to reflect that he was scheduled to work, therefore, he left and did not work the day. Complainant's supervisor explained that Complainant had initially requested leave, but then cancelled it, but the schedule had not been officially changed to reflect it. FAD, p. 2. Second, there is insufficient evidence to find that Complainant's supervisor shoved her high school ring in his face. Third, there is also insufficient evidence to support Complainant's claim that he was subjected to disparate treatment discrimination due to his supervisor threatening him with AWOL on a continuous basis because other testimony in the record indicates that the supervisor threatened other employees as well, even if they were one minute late from break. FAD, p. 3. Fourth, the comments "this is a woman's world," "you'll do what I say" and the allegation that Complainant's supervisor had a confrontation with him that almost became physical do not sufficiently support his allegations of discrimination. The comment "this is a woman's world" was made in jest to another employee who provided testimony to this effect. ROI, p. 18. Further, even though the supervisor's alleged aggression also impacted co-workers, Complainant does not detail how these actions were based on the protected classes for which he is alleging discrimination. Finally, Complainant's supervisor restricted his ability to participate in overtime and credit hours because his unsuccessful evaluation did not entitle him to work overtime and credit hours. ROI, p. 21. Complainant did not show these legitimate, nondiscriminatory, reasons to be pretext for discrimination. Therefore, Complainant did not prove by a preponderance of the evidence that he was subjected to disparate treatment discrimination because of his race, sex or disability. II. Complainant Did Not Prove That He Was Subjected To A Hostile Work Environment Because There Is Insufficient Evidence That He Was Subjected To Severe Or Pervasive Conduct Sufficient To Constitute A Hostile Work Environment Harassment of an employee that would not occur but for the employee's [race or sex] is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing, McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993). To the extent Complainant argues that he was subjected to a hostile work environment, the claim fails due to insufficient evidence that Complainant was subjected to any conduct that was severe or pervasive enough to constitute a hostile work environment. III. Complainant Was Denied A Reasonable Accommodation Because He Was A Qualified Individual With A Disability But The Agency Refused To Modify His Work Schedule To Compensate For His Restricted Ability To Walk In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he 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). While an employer is not required to create a job for a disabled employee, a reasonable accommodation may include reassignment to a vacant position or modification of policies. 29 C.F.R. § 1630.2(o)(2)(ii); accord, Brooks v. U.S. Postal Serv. Request No. 05990023 (Feb. 21, 2002) (citing, Ignacio v. United States Postal Service, EEOC Petition No. 03840005 (September 4, 1984) , aff'd, 30 M.S.P.R. 471 (Spec. Pan. February 27, 1986)). Complainant is an individual with a disability, a fact that the Agency concedes. FAD, p. 8. Complainant suffers from paralysis of his right leg and foot, which limits his ability to walk. FAD, p. 2. Complainant's disability is visible since he utilizes a brace and walks with a limp. FAD, p. 2; ROI, p. 15. The Agency also concedes that Complainant was a qualified individual with a disability because he could perform the essential functions of his job. FAD, p. 8. Complainant requested accommodation for additional time during his breaks, apparently ranging from 5-15 minutes, in order to go on break and return to his work station. ROI, p. 107. Complainant also requested a modification to his arrival and departure work times. Id. Complainant had limited ambulation, therefore, it took him longer to get places. The record reveals that Complainant requested this, but was told he could not attain an accommodation. The declaration of the Department Manager confirms this: Once before we had...RA [reasonable accommodation]/EEO come over to our building to have a discussion with [Complainant] about RA was to help employee[s] do their job and not change their TOD [time on duty]. [Complainant] was under the impression that because he had difficulty walking, he could file an RA [reasonable accommodation] to let him come to work five minutes late each day, have an additional five minutes added to breaks and lunch and then leave five minutes early each day." Declaration of Dept. Manager, ROI, p. 107. The declaration of the Supervisory Contract Representative, Complainant's supervisor, also indicated that Complainant was denied his request for accommodation: "EEO explained that even though he had a disability he could not get additional time because other disabled employees are not granted additional time." ROI, p. 86. Complainant identified a number of available potential reasonable accommodations. First, the Agency could have allowed Complainant extra time during breaks and to adjust his arrival and departure times, thereby eliminating the constant threats of placing him in AWOL. See, for example, Holland v. Social Security Administration, EEOC Appeal No. 01A01372 (Oct. 2, 2003) (finding that allowing for intermittent breaks away from the telephone at a teleservice representative job could have been a reasonable accommodation); EEOC v. Convergys Customer Management Group, 491 F.3d 790 (8th Cir. 2007) (finding an extra 15 minute break was a reasonable accommodation that would allow the plaintiff to comply with the employer's punctuality requirement; noting that employer did not put forth any evidence showing that extending the plaintiff's lunch break by an 15 minutes would eliminate its punctuality requirement); see also, EEOC Enforcement Guidance On Reasonable Accommodation, No. 915.002 (Oct. 2002) ("An employer [must] allow an employee with a disability to work a modified or part-time schedule as a reasonable accommodation, absent undue hardship." "A modified schedule may involve adjusting arrival or departure times...") (emphasis added). Complainant also indicated that there were"paper cases" available for employees to work at rather than being on the telephone. See ROI, p. 78. Finally, the Agency could have also considered reassigning Complainant to another position. EEOC Enforcement Guidance On Reasonable Accommodation, No. 915.002 (Oct. 2002). Since Complainant identified possible accommodations, and the Agency did not effectively respond to any of them, much less demonstrate that any of them would have posed an undue hardship, Complainant demonstrated by a preponderance of the evidence that he was denied reasonable accommodation. IV. Complainant Was Subjected To Reprisal Because An Agency EEO Official Deterred Him From Seeking Reasonable Accommodation For His Disability "A request for reasonable accommodation is a form of protected activity." Walters v. Pension Benefit Guarantee Corporation, EEOC Appeal No. 0220080001 (Nov. 18, 2010); Keller v. U.S. Postal Serv., EEOC Appeal No. 01A03119 (Apr. 25, 2003). Federal employees are protected from "retaliation" in their exercise of their own rights or their encouragement of someone else's exercise of rights granted by the Rehabilitation Act. 29 U.S.C § 791; see also, Americans With Disabilities Act of 1990 (ADA), as amended, Section 503, 42 U.S.C.A. § 12203. When a supervisor's behavior has a potentially chilling effect on the ultimate tool that employees have to enforce equal employment opportunity, the behavior is a per se violation. Yubuki v. Department of the Army, EEOC Request No. 05920778 (June 4, 1993) (supervisor's intimidation constituted unlawful interference with the EEO process); Bensing v. Dept. of the Navy, EEOC Appeal No. 01970742 (Oct. 3, 2000) (the actions of a supervisor may be per se reprisal where s/he intimidates an employee and interferes with his/her EEO activity in any manner). The record reveals that an EEO official spoke to Complainant on at least one occasion, advising him that he could not get a reasonable accommodation for additional time during breaks, and for arrival and departure, because reasonable accommodation "was to help employee[s] do their job and not to change their TOD [time on duty]." This apparently resulted in Complainant not filing a formal request for reasonable accommodation through the Agency's established channels, and led Complainant to believe that he did not in fact request a reasonable accommodation, and moreover, that one could not be granted for him. See ROI, p. 14 (explaining that Complainant "had not filed a formal reasonable accommodation"). The Agency's actions in deterring Complainant from filing a formal request for reasonable accommodation, constitute reprisal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD finding he was not subjected to disparate treatment discrimination and harassment is AFFIRMED. However, the Commission's determination that Complainant was denied a reasonable accommodation and subjected to reprisal REVERSES the remainder of the FAD. The Agency is direct to comply with this decision and the Order below. ORDER Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency is ORDERED to take the following actions: 1. Engage in an interactive process to determine an appropriate extension of time for breaks, and an appropriate adjustment for Complainant's arrival and departure times, in consultation with Complainant. 2. Calculate compensatory damages for harm caused by the reprisal. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to the Complainant for the undisputed amount within 120 (one hundred and twenty) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. Provide training to the Agency personnel responsible for the denial of reasonable accommodation and reprisal, particularly to the Supervisory Contact Representative and the EEO official mentioned in this decision, placing special emphasis on an employer's obligation to provide reasonable accommodation to qualified individuals with disabilities. 4. Post at the Accounts Management Section facility in Covington, Kentucky, copies of the notice discussed below. 5. The Agency shall consider taking appropriate disciplinary action against the Agency officials involved in the discrimination. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that all of the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at the Accounts Management Section facility in Covington, Kentucky, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 (M0815) 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, 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. 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. In the alternative, you have the right file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 Complainants 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 12-10-2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website. 2 The Agency did not identify denial of reasonable accommodation as a claim for Complainant in the EEO process, and the issue was not listed as an official topic of investigation. It is the policy of the courts to liberally construe pro se filings to minimize the risk of a miscarriage of justice. See Wright v. C.I.R., 571 F. 3d 215, 219 (2d Cir. 2009) (appellate submissions of pro se litigants interpreted "'to raise the strongest possible arguments they suggest.'") (citation omitted); see also Comer v. Peake, 552 F. 3d 1362, 1369 (Fed. Cir. 2009) (citing Hughes v. Rowe, 449 U.S. 5, 15 (1980)) (a pleading drafted by a pro se litigant is held to a lesser standard). Such a policy is appropriate in the Commission's adjudicatory process because the risk of injustice is no less real. While the formal complaint does not specifically allege denial of reasonable accommodation, it is apparent from the testimony that Complainant requested a reasonable accommodation and had issues with the fact that it was denied. In his formal complaint, Complainant identified the effects of his disability as "restricted ambulation." See Formal Discrimination Complaint. The FAD states the legal rule for reasonable accommodation: "federal agencies...are required to make reasonable accommodation to the known physical or mental impairments of an individual with a disability who is qualified to perform the essential functions of the job..." FAD, p. 8. The Agency states in its Brief in Opposition to Appeal (Agency Brief) that "although it is unclear on which specific theory of disability discrimination Appellant relies, he cannot state a claim under the Reasonable Accommodation theory where Appellant admits that he never requested a reasonable accommodation from the Agency." Agency Brief, p. 10. The record reveals that management officials discussed reasonable accommodations with Complainant and informed him that he would not be able to get accommodation. See e.g., ROI, p. 22. Even though Complainant did not file a "formal" request for reasonable accommodation, the testimony established that he requested a reasonable accommodation. Id. This set of circumstances leads to the conclusion that the Agency was on notice of a denial of accommodation claim. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2013-0672 2 0120130672