Beatriz P.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.Download PDFEqual Employment Opportunity CommissionNov 14, 20180120170868 (E.E.O.C. Nov. 14, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beatriz P.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency. Appeal No. 0120170868 Agency No. DOS-0118-16 DECISION On December 28, 2016, 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 November 28, 2016, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED Whether Complainant established that he was subjected to discrimination based on disability and reprisal (prior EEO activity), when the Agency improperly processed and denied his disability retirement application. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Special Agent, Assistant Regional Security Officer, at the Agency’s U.S. Embassy in La Paz, Bolivia. On March 7, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (traumatic spinal/foraminal stenosis and permanent nerve injury) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when the Agency improperly processed and denied his disability retirement application. 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. 0120170868 2 The Agency explained that, consistent with its policies and procedures, Complainant’s retirement application was properly reviewed and processed; that the application was denied because Complainant was found ineligible for disability retirement under applicable requirements; and that management’s actions were not motivated by discriminatory or retaliatory animus. Complainant alleges that the Medical Director, (S1), the Chief of Occupational Medicine (S2), and his supervisor, the Deputy Director, (S3) subjected him to discrimination when they improperly processed his retirement application, which he filed after he was diagnosed with disabling conditions that degenerated with age. Complainant stated that he had submitted documentation about his diagnosis and injury to informed management of his disability. S1 and S2 acknowledged Complainant’s diagnoses, having learned of his medical condition when they reviewed, and forwarded for processing, his medical documentation which was submitted in support of his request for disability retirement as a reasonable accommodation. S3 also admitted that he signed the memo forwarding Complainant’s disability package for processing to the appropriate office for approval or disapproval. Complainant alleged that two different physicians found him to be medically unable to fulfill the essential functions of his position, and that he submitted supporting documentation explaining his condition and the timeline of his injury to management. He stated that he submitted medical documentation for disability retirement to Human Resources (HR) and to S3. Complainant also stated that he learned that his disability application was denied because it failed to show that he was totally disabled for useful and efficient service to the U.S. government. Management asserts that their recommendation for denial of Complainant’s retirement request was based on a Medical Review Panel’s determination that Complainant’s physical condition did not meet one of the required conditions for eligibility as specified in the Foreign Affairs Manual (FAM), i.e., Complainant was not totally disabled or incapacitated for useful and efficient service by reason of disease, illness, or injury. According to Complainant, when he asked for reconsideration, S3 just repeated the process and refused to allow the appeal to be presented to the Director General (DG). He added that the Human Resources (HR) Specialist stated that there was no set process in place to provide the reconsideration. S3 stated that his office, the Office of Retirement, is responsible for processing disability cases for employees, but that it has no legal or regulatory authority to approve or disapprove disability retirements. He stated that it is the Medical Bureau that has the authority to make a recommendation by using a three-member medical panel. According to S3, the Office of Retirement uses the same process for all disability cases. S1 stated that he reviewed the recommendation and materials forwarded to him by the Chief of the Bureau’s Domestic Programs. He noted that the recommendation resulted from a review of supporting documentation by a three-physician Medical Review Panel. 0120170868 3 According to S1, he then submitted a written report through the Department’s Office of Retirement to the DG office that provided the findings of their process and his recommendation. He admitted that he made the recommendation to the DG’s office that the request for medical disability be denied. Complainant stated that he applied for reconsideration and a hearing with the DG through HR. In response to his appeal, Complainant indicated that he received the same letter of denial with a different date authored by the same individual. According to Complainant, he was not granted a proper hearing with the DG as required, nor was he advised of any of his rights of appeal or grievance; rather he was told he had exhausted his options. S1 noted that Complainant submitted a request for reconsideration of the initial decision to deny his disability retirement. He stated that the reconsideration was completed, and the resulting recommendation against approving disability retirement was forwarded to the DG’s office that same day. According to S1, his involvement was the same for both the initial determination and the reconsideration. S1 stated that if further information or appeals are made, HR/RET forwards this information and the same review procedures that were used for the original request are repeated with the new information. S2 testified that she oversees the Office which deals with HR on medical related issues, such as this, she explained that her office did not play any role in the denial of Complainant’s application since they only noted the adjudication decision made by the three-physician panel. Like S1, she testified that the same established procedure used for all applicants was utilized in Complainant’s case. Complainant stated he had filed an EEO complaint against the Agency because members of the Bureau of Diplomatic Security refused to properly process his reasonable accommodation request and misrepresented the process. He indicated that the processing of a removal for cause against him was in retaliation for the instant EEO complaint. Management stated that they were not aware of Complainant’s prior EEO activity, and only learned of his present complaint when they received affidavit requests in the present case. 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. 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. CONTENTIONS ON APPEAL Among other things, Complainant reiterates his contentions that Agency officials: (1) improperly processed and denied his disability retirement application; (2) knowingly and willingly did not forward the request for reconsideration to the Director General as stated in the Department’s policies; (3) failed to provide a denial in accordance to Department’s regulations; and (4) subjected 0120170868 4 him to a hostile work environment characterized by ignoring all evidence that supported his inability to report for duty and began removal for cause proceedings. He contends that Given the ranking, level of experience, competence of the individuals involved and the ease with which the applicable governing regulations can be found, pretext can be inferred. Complainant further contends that the refusal to forward his reconsideration request to the DG can only be interpreted as an effort to prevent the claim from going further despite Complainant meeting all requirements set by law for disability requirement. He adds that management’s statement that in the last year, ten (10) other Special Agents have been denied disability retirement by using the same flawed interpretation of policies should be interpreted as discriminatory animus within the organization. The Agency contends, in pertinent part, that Complainant’s statement fails to provide any substantive information to alter the underlying findings of the FAD. 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. (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 lawâ€). ANALYSIS AND FINDINGS To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 0120170868 5 Assuming, arguendo, that Complainant established a prima facie case of disability and reprisal discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In this case, Complainant alleged that the Agency improperly processed and denied his disability retirement application. The Agency explained that, consistent with its policies and procedures, Complainant’s retirement application was properly reviewed and processed; that the application was denied because Complainant was found ineligible for disability retirement under applicable requirements; and that management’s actions were not motivated by discriminatory or retaliatory animus. Complainant disagreed with the way his disability application was processed. He contends that management failed to adhere to the Office of Personnel Management (OPM) Guidelines, and the Agency’s own policies and standards. He asserts that the denial letters were clearly templates and some were written before his application was even submitted. Complainant further contends that the refusal to forward his reconsideration request to the DG can only be interpreted as an effort to prevent his claim from going further despite his meeting all requirements set by law for disability requirement. We find that Complainant has not established pretext here. Even if we accept his position that Agency officials were not in compliance with OPM and other regulations and directives that does not indicate that they acted because of discriminatory animus in his case. Management explained that the process used for Complainant’s application for disability retirement was no different than that used in all other cases. Certainly, Complainant can challenge the fairness of the process, but he presented no persuasive evidence that he was treated differently than other similarly situated employees from outside of his protected groups. Complainant’s application for disability retirement was denied because he was determined to not be totally disabled or incapacitated for useful and efficient service by reason of disease, illness, or injury. To show pretext, Complainant refers to statements allegedly made by his supervisors warning that his attempt to seek disability retirement and his involvement with EEO process regarding a reasonable accommodation request would, “come back to bite him; and maintained that the commencement of a removal for cause was in retaliation for his EEO activity. However, we note that a removal allegation was not an issue in this complaint, and therefore will not be addressed here.2 Regarding the statements that Complainant attributes to his supervisors, we find no persuasive evidence in the record that such statements were made. Although Complainant raised the issue on appeal, we do not find this matter in his affidavit. Nevertheless, assuming, arguendo, that the comments were made, we find no nexus between the comments and the matters at issue here. For example, Complainant did not indicate when the comments were made in relation to the denial of his retirement application. 2 Complainant, if he has not already done so, should seek EEO counseling on any matter that he believes was the result of discrimination. 0120170868 6 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 because the preponderance of the evidence in the record does not establish that discrimination occurred. 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 (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. 0120170868 7 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 November 14, 2018 Date Copy with citationCopy as parenthetical citation