U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wiley G.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120152601 Hearing No. 430-2014-0025X Agency No. DON 13-40085-00380 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's June 23, 2015, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Boiler Plant Equipment Mechanic at the Agency's NAVFAC MIDLANT division in Norfolk, Virginia. Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (acrophobia-fear of heights). The Agency initially dismissed Complainant's complaint on procedural grounds. Complainant appealed and the Commission's Office of Federal Operations reversed the dismissal and remanded the matter to the Agency for further processing. See EEOC Appeal No. 0120122550 (Oct. 15, 2012), req. for recons. den., EEOC Request No. 0520130136 (May 17, 2013). 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's April 21, 2014, motion for a decision without a hearing and issued a decision without a hearing on June 2, 2015. The AJ framed Complainant's claims in the following fashion: Since July 2010, [Complainant] has been denied a reasonable accommodation and subjected to harassment. Specifically: 1. on or about December 20, 2011, Complainant received a Notice of Denial of Reasonable Accommodation, even though he has been working with the accommodation of height limitation since 1997 with no problems; 2. on a consistent basis, [Complainant's first level supervisor, S1] badgers Complainant about little things he allows other employees to do without saying anything to them; and 3. on a daily basis, [S1] makes the statement, "I'm going to make you do your job," even though [Complainant] has not been put on limited duty and has continued to perform his normal Boiler Mechanic duties. Regarding Complainant's denial of a reasonable accommodation claim, the AJ found "for purposes of summary judgment, that working above ten feet is not an essential function of Complainant's job, despite what his job description states." AJ Decision at 6. The AJ reasoned that Complainant provided testimony in his affidavit that working above ten feet was infrequent and that Complainant's statement with respect to this issue was corroborated by other co-workers. Id. The AJ, however, found that Complainant failed to establish that he was denied a reasonable accommodation because the record does not reflect that the Agency assigned him work above ten feet once he submitted medical documentation regarding his restriction.2 Id. The AJ conceded that the Agency issued a Notice of Inability to Accommodate in Current Position and a Denial of Request for Accommodation which, on their face, deny Complainant an accommodation. However, the AJ found that "the issue is not the language in the Agency's documents, however confusing that language may be, but the actions that actually occurred. As for those actions, the record demonstrates that the Agency complied with Complainant's medical restrictions by not assigning him to work jobs above [ten] feet."3 Id. The AJ also found that Complainant failed to establish a that he was subjected to a hostile work environment based on his disability. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. On appeal, Complainant, though his attorney, asserts that the AJ erred by issuing a decision without a hearing. Specifically, Complainant's attorney asserts that, "Complainant is constantly threatened with being made to perform duties which he cannot do and which are associated with considerable fear...It makes no sense to tell a disabled employee that their accommodation is denied, threaten them with work counter to their restrictions and then maintain that there is no hostile environment. Complainant has laid out a claim that he is approached daily by his supervisor with threat of being made to work at height[s] counter to his restrictions...This creates an objectively hostile environment..." Complainant's Brief in Support of Appeal at 5-6. In response, the Agency's requests that we affirm its final order implementing the AJ's decision without a hearing finding no discrimination. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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). 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 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). We find that the AJ erred in issuing a decision without a hearing. The record warrants further development and credibility determinations with respect to whether Complainant was subjected to a hostile work environment based on his disability. We find that the AJ's decision, which found that working above ten feet was not an essential function of Complainant's position, did not look at all the incidents comprising Complainant's hostile work environment claim collectively. For example, Complainant has alleged that he was approached by his supervisor daily with the threat of being forced to perform duties which he cannot do and which are associated with considerable fear on his part. Complainant's Response to Agency's Motion for Summary Judgment at 2, Report of Investigation (ROI) at 9, 235. S1 denies this allegation. ROI at 261. Complainant's fear was further exacerbated when his supervisor issued documents which informed him that he could not be accommodated in his current position and that he could be reassigned or terminated at any time. The record contains a memorandum from S1 to Complainant dated August 10, 2010. Therein, S1 asserted that it had been determined that Complainant was a qualified individual with a disability, but could not be accommodated in his current position. Id. at 103-104. The memorandum also set forth that a job search was being conducted in an effort to place Complainant in a different position. Id. at 104. In a memorandum entitled Denial of Request for Accommodation from S1 to Complainant dated November 17, 2011, S1 asserted that the job search was not successful and informed Complainant that "action may be taken to separate [him] from federal service." Id. at 99-100. A hearing is needed to determine the veracity of Complainant's allegations of his supervisor's constant threats, and to further develop evidence on why Complainant could not be accommodated with the removal of the non-essential function of working over ten feet high, and on why the Agency officially informed him that he might be reassigned or terminated from federal service. All these alleged incidents collectively must be considered in adjudicating Complainant's hostile work environment claim. Based on the foregoing, the record warrants further development and possible credibility determinations with respect to Complainant's hostile work environment claim. Accordingly, we VACATE the Agency's final order and REMAND this matter to the Agency in accordance with this decision and the Order below. ORDER The Agency shall submit to the Hearings Unit of EEOC's Charlotte District Office a request for a hearing within thirty (30) calendar days from the date this decision is issued. The Agency is directed to submit a copy of this decision and the complaint file to the EEOC Hearings Unit within thirty (30) calendar days from the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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 November 8, 2017 ________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below: Joseph Talarico 1050 Dune St Norfolk, VA 23503 M. Jefferson Euchler, Esq. 708 S Rosemont Rd #202 Virginia Beach, VA 23452 Juan M. Garcia, Assistant Secretary of the Navy (Manpower and Reserve Affairs) Department of Navy C/O NAVOECMA 614 Sicard Street SE, Suite 100 Washington Navy Yard, DC 20374-5072 __________________ Date ______________________________ Compliance and Control Division staff signature Compliance and Control Division 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 contains a Work Restriction Evaluation form for Complainant dated March 30, 2010. The form reflects that Complainant has Acrophobia and cannot work more than ten feet above the ground. ROI at 122. 3 The AJ noted that if the Agency were to stop Complainant's light duty and require him to work above ten feet, there might be a violation of the Rehabilitation Act, but further stated that "mere speculation that it might happen at some point in the future does not demonstrate a violation." AJ Decision at 6. The AJ further noted that "[a]s the Agency has provided an effective accommodation for Complainant's current position by removing the non-essential job duty of working above [ten] feet, reassignment was unnecessary. Had the Agency forced Complainant to accept a reassignment, or if the Agency were to do so in the future, this would present a different issue that will not be addressed at this time." AJ Decision at 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152601 2 0120152601 8 0120152601