0120112815
08-14-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(National Geospatial-Intelligence Agency),
Agency.
Appeal No. 0120112815
Agency No. NGAW-10-E15
DECISION
On May 4, 2011, Complainant filed an appeal from the Agency's April 19, 2011, final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Visual Information Specialist at the Agency's facility in Arnold, Missouri.
On August 16, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (association based on his wife's condition), and age (67) when:
1. On February 8, 2010, he was notified that he would be moved from second shift to first shift, and then again subsequently, when his request for an accommodation to remain on second shift was denied on February 18, 2010;
2. On March 14, 2010, he was officially assigned to work the first shift, and after working four hours a day and exhausting his sick leave to cover the remaining four hours of his shift, he retired effective March 31, 2010; and
3. On April 2, 2010, Complainant learned that his co-worker (Co-worker) was allowed to remain on the second shift.
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 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 Agency's final decision noted that on December 8, 2009, the Manager sent an email to employees including Complainant informing them that the St. Louis Information Library operations were due to ramp-up in March 2010. The email indicated that there would be three shifts of work available in the St. Louis facility and those interested in moving needed to express their interest by December 17, 2009. Subsequently, by email dated January 25, 2010, the Chief informed the employees that the second shift at the facility would be eliminated in the next few months. At that time, the email listed those who had volunteered for the St. Louis facility and noted that there was one more opening on the second shift. Employees were advised to email their supervisors by January 28, 2010, if they wanted to serve in that position. On February 8, 2010, Complainant and the other employees were informed that the transfer to the first shift would begin on March 15, 2010. Complainant indicated that he would obtain a letter from his wife's doctor asking that he remain on the second shift to be with his wife during the day. Complainant and the Chief had exchanged emails where Complainant noted that he had not requested a transfer to the St. Louis position because he planned to retire before the St. Louis facility was operational. From March 14-30, 2010, Complainant worked for four hours and used sick leave for the remaining four hours of his work days. Complainant retired on March 31, 2010.
The Agency's decision determined that the Agency was not obligated to provide Complainant with a reasonable accommodation based on his wife's condition. Further, the Agency held that management had provided legitimate, nondiscriminatory reasons for its actions. As such, the Agency concluded that Complainant failed to establish that he was subjected to unlawful discrimination. This appeal followed.
By letter dated May 24, 2011, OFO notified the Agency of the filing and that it was required to submit a copy of the entire complaint file within thirty (30) calendar days of the Agency's receipt of the letter of notification. The May 24, 2011 letter advised the Agency that failure to submit the entire complaint file within the specified time frame could result in the Commission drawing an adverse inference. OFO had not received the complaint file. As such, on July 10, 2014, we issued a Notice to Show Cause (Notice) ordering the Agency to submit the complete complaint file. In response to the Notice, the Agency noted that it had submitted the complaint file in May 2011 and resubmitted a copy of the complaint file. We find that the record is now complete.
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. (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").
Denial of Reasonable Accommodation
Complainant asserted that he needed the second shift as an accommodation to allow him to care for his wife. According to the regulation set forth at 29 C.F.R. � 1630.8 it is unlawful for a covered entity to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association. The Commission has held, however, that individuals with a relationship or association with a person with a disability are not entitled to receive reasonable accommodations. EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at n. 5 (October 17, 2002). As such, we find that Complainant has not shown that the Agency's action violated the Rehabilitation Act.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. The Agency indicated that all employees on the second shift were being reassigned. Further, the Chief averred that Complainant did not volunteer for the St. Louis second shift position. The Manager stated that Complainant was one of the six people with the lowest seniority and were to report to the first shift on March 15, 2010. The two with the highest seniority were transferred to the first shift on April 26, 2010. The Co-worker was provided with an accommodation due to her own medical reasons to transition from the second to the first shift over a ten week period. Finally, they indicated that Complainant retired voluntarily.
Finding that the Agency has met its burden, we turn to Complainant to show that the Agency's reasons were pretext for discrimination. Complainant argued that he should have been provided the same "deal" as the Co-worker. Further, he claimed that he should have been transferred to St. Louis. We find that Complainant's assertions do not establish that the Agency's reasons were pretext. As such, we conclude that Complainant failed show that he was subjected to disparate treatment.
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 finding no discrimination.
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
August 14, 2014
__________________
Date
2
0120112815
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112815