0120152446
12-08-2017
Chadwick S,1 Complainant, v. Elaine C. Duke, Acting Secretary, Department of Homeland Security, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chadwick S,1
Complainant,
v.
Elaine C. Duke,
Acting Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120152446
Hearing No. 540201300091X
Agency No. HSCBP226182012
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's June 8, 2015 final order 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Customs and Border Protection Officer ("CBPO"), GS-07 at the Agency's Port of Entry ("POE") in Nogales, Arizona.
On August 9, 2012, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race (Caucasian), national origin (European), religion (Jewish), color (White), and disability (thumb injury and bone bruise) when: effective May 5, 2012, his employment was terminated during his probationary period.
Complainant began working at Nogales POE on October 3, 2011, a "career conditional appointment subject to satisfactory completion of a one-year probationary period." Complainant recounts that he "did not feel welcome [at Nogales POE] from day one" and that he struggled to "fit in" because he was a minority among his colleagues. His first level supervisor ("S1"), like most of Complainant's colleagues, was of Hispanic national origin. S1 allegedly contributed to Complainant's difficulties fitting in. For instance, S1 spoke Spanish to his coworkers in his presence, even though she knew Complainant did not speak Spanish, and that his coworkers could also speak English. Once, S1 allegedly looked at Complainant while speaking Spanish, and when she stopped, his coworkers laughed. S1 asked Complainant if his last name was "Jewish" and where he was from. When Complainant responded that he was from New Jersey, S1 said, "Jersey? Why would you come down here?" Complainant also alleges that when another supervisor commented, "Boy, he's really white!" in reference to Complainant, S1 only smirked.
On October 25, 2011, Complainant reported for CPB Officer Training at the Agency's Federal Law Enforcement Training Center ("FLETC") in Glynco, Georgia. On January 27, 2012, during Defense Tactics Training, Complainant caught his right thumb in his partner's facemask. A physician at the FLETC Health Unit diagnosed Complainant with a sprained thumb. When the pain did not subside, Complainant returned to the Health Unit on February 23, 2012, and was diagnosed with a "sprain of the carpal joint and contusion of the right wrist." Complainant filed a claim with the Office of Workers Compensation Programs ("OWCP") at the Department of Labor ("DOL"). Regardless, Complainant successfully completed training on March 7, 2012. From March 9, 2012 through April 18, 2012, Complainant took Spanish language training in South Carolina, and was scheduled to report for duty at Nogales POE on April 23, 2012.
Meanwhile, OWCP approved Complainant's request on April 4, 2012, but noted that Complainant continued working "full time, regular duty" throughout training, despite the injury. The next time Complainant sought medical treatment for his injury was the day of graduation from Spanish language class, April 18, 2012. According to Complainant, a physician at the South Carolina training facility informed him that he may require surgery, and verbally advised him to follow up with an orthopedic hand specialist in New Jersey. The physician also recommended Complainant work light duty due to decreased strength in his right hand.
On April 22, 2012, Complainant emailed and left a voicemail for S1, informing her that he was "taking sick leave for the next few days," referencing an appointment with a hand specialist in New Jersey and promising to provide documentation upon his return. In both phone and email messages, S1 ordered Complainant to return to work. She denied his sick leave request, citing failure "to provide administratively acceptable evidence that [he was] totally incapacitated for the performance of the full range of duties of a CBPO." S1 also notified Complainant that he would be coded as Absent Without Leave ("AWOL") if he did not report to duty on April 23, 2012, and that failure to report to duty could result in termination during his probationary period.
During the same time frame, Complainant became aware of vacancies for CBPO positions at the Agency's POE in Newark, New Jersey. On March 1, 2012, Complainant sent a letter to "higher-level managers" requesting reassignment from the Nogales POE to the Newark POE. Complainant explained that Newark had been his preferred duty station and alleged that the Agency's employees at the Minneapolis Hiring Center used "coercive practices" and "mislead" him "to accept the position at Nogales." On April 19, 2012, Complainant emailed the Assistant Commissioner in the Office of Human Resources ("H1"), about the Agency's alleged lack of action taken on his March 1, 2012 letter. He requested to go on Leave Without Pay ("LWOP") until the matter was "legitimately" investigated. He also stated "I will not be able to report to the Nogales, Arizona POE because I do not have any arrangement made ...and do not plan on making any at this point, but at the same time I do not want to be marked AWOL." At the conclusion of Spanish language training, Complainant returned home to New Jersey instead of reporting to duty in Nogales.2
On May 3, 2012, Complainant was issued a Notice of Termination, signed by the Acting Director, Field Operations, at the Agency's Tucson Field Office. The Notice cited Complainant's probationary status, his failure to report to duty on April 23, 2012 and "to date," as well as failure to follow S1's instructions, to report to duty when his requests for leave were denied. The Notice also provides that Complainant "sent email messages to managers at the Nogales POE and to senior CBP managers that were disrespectful and unprofessional." According to the Agency's Senior Labor and Employee Relations Specialist for the Tucson Field Office, termination is consistent agency response for a probationary employee's "knowing and intentional refusal to report for duty."
After investigating Complainant's EEO complaint, the Agency provided him with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, and, over Complainant's objections, the AJ subsequently issued a decision by summary judgment in favor of the Agency.
The Agency issued its final order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
ANALYSIS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). 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. In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute.
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).
Assuming, arguendo that Complainant could establish a prima facie case for discrimination based on his protected classes, he offers no evidence that the Agency's legitimate nondiscriminatory reason for his termination - intentional refusal to report to duty - was pretext for discrimination. The record supports that Complainant was assigned to the Nogales POE and was to report to duty on April 23, 2012, after successfully completing his training. As the AJ aptly points out, even if Complainant believed he was "misled" into working at Nogales POE, he already accepted the CPBO position and agreed to report to duty. Complainant was aware that if he did not report to duty, his absence would be recorded as AWOL and could result in termination from employment. Complainant did not return to his assigned station, and made it clear to S1 and upper level management that, for reasons related and unrelated to his protected classes, that he did not intend to return.
Moreover, the Agency provided evidence to support its legitimate nondiscriminatory reason for Complainant's termination is consistent with its internal policies for probationary employees, as well as federal regulations. The Commission has long held that where a complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. See Tristan W. v. United States Postal Serv., EEOC Appeal No. 0120152084 (Jul. 11, 2017) (other citations omitted). As of the effective date of Complainant's termination, he had worked only 7 months of his one year probationary period. Complainant has not raised an issue of material fact on these matters to warrant a hearing.
Denial of reasonable accommodation
Agencies are required to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). 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, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. See Bryan R. v. United States Postal Serv., EEOC Appeal No. 0120130020 (Mar. 20, 2015), citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (Oct. 17, 2002). When an individual's disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his or her disability and functional limitations. Id. at Question 6. The employer is entitled to know that the individual has a covered disability for which he or she needs a reasonable accommodation Id. Agencies are required to engage in an interactive process with employees regarding reasonable accommodations, and employees who refuse to cooperate in that process are not entitled to an accommodation. See Carleen L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120151465 (May 12, 2017). If an individual's disability or need for accommodation is not obvious, and he or she refuses to provide the reasonable documentation requested by the employer, then he or she is not entitled to reasonable accommodation.
Even if we assume arguendo that Complainant is a qualified individual with at disability, the record supports the AJ's finding that there is no evidence to create a genuine issue of material fact of whether his employment was terminated because he was denied a reasonable accommodation. Specifically, Complainant argues that S1 should have recognized his request for sick leave to pursue medical treatment in New Jersey as a request for a reasonable accommodation. He also argues that he "should not be faulted" for seeking treatment in New Jersey, where he had roots, as he might require assistance from family and friends if he ended up having surgery. Complainant also argues that if he returned, his physical safety would have been compromised as well as those around him" because he felt "excruciating pain" any time he attempted to hold something with his dominant hand, including the weapons assigned to CPBOs.
The AJ notes, and we agree, that Complainant failed to offer evidence that he would have been denied light duty had he returned as ordered, and that that "[b]eing placed on light duty is very different from being placed on an off-work status for medical reasons." The OWCP documentation and the medical recommendation from Complainant's physician recommending light duty do not indicate incapacitation so that Complainant could not work at all. The Agency argues that Complainant made the "unilateral" decision not to return to work, disregarding orders. Given the evidence of Complainant's lack of intent to return at all for reasons other than his medical condition, we find Complainant has not shown an issue of material fact exists to warranting a hearing with regard to whether he requested a reasonable accommodation.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
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. 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
December 8, 2017
__________________
Date
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 Complainant also appealed his termination to the Merit Systems Protection Board ("MSPB") on the grounds that he engaged in protected whistleblowing activity about the Agency's alleged deceptive hiring practices, causing him to be assigned to Arizona instead of New Jersey (MSPB Docket No. DE1221130216).
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0120152446