Raleigh T.,1 Complainant,v.Dr. Mark T. Esper, Acting Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Oct 9, 2019

0120182654 (E.E.O.C. Oct. 9, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Raleigh T.,1
Complainant,

v.

Dr. Mark T. Esper,
Acting Secretary,
Department of Defense
(Defense Health Agency),
Agency.

Appeal No. 0120182654

Hearing No. 451-2015-00067X

Agency No. 14-0016

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 21, 2018,
final order concerning an equal employment opportunity (EEO) complaint claiming 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

During the period at issue, Complainant worked as an Information Customer Support Specialist,
2210, GS 11 at the Agency’s Medical Network Operations and Security Center, Customer
Service Division, Joint Base San Antonio in San Antonio, Texas.

On June 11, 2014, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him and subjected him to a hostile work environment based on
race (African-American) and disability (Post-Traumatic Stress Disorder/PTSD) when:

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.
0120182654

2
1. on or about May 19, 2014, Complainant became aware that his first line
supervisor (“S1”) informed the Team Leads (“TL1,” “TL2,” and “TL3”) that
Complainant had experienced an anxiety breakdown due to stress on the job
combined with his PTSD, and that he was placed on FMLA and may be gone for
a period of time. TL1 then provided a briefing on workplace violence to the
group and instructed everyone to call the police, or notify building security if they
felt threatened by Complainant;

2. on or about May 15, 2014, S1 offered several of Complainant’s co-workers the
opportunity to telework. However, this opportunity was never presented to
Complainant; and

3. on or about May 15, 2015, S1 denied Complainant’s request to use administrative
leave to attend training once-a-month under his Vocational Rehabilitation
Benefits through the Veteran’s Administration, while a co-worker received
approval for an alternate work schedule to attend college courses during the
summer.

After an investigation of the accepted claims, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The Agency submitted a Motion for Decision Without a Hearing.
Complainant responded to the Agency’s Motion. On April 10, 2018, the AJ issued a decision, by
summary judgment, in favor of the Agency.

On June 21, 2018, the Agency subsequently issued a final order adopting the AJ’s finding of no
discrimination.

The instant appeal followed. On appeal, Complainant does not submit additional statements or
briefs.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision
without a hearing regulation follows the summary judgment procedure from federal court. Fed.
R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge
determines no genuine issue of material fact exists under the legal and evidentiary standards.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment
motion, the judge is to determine whether there are genuine issues for trial, as opposed to
weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the
non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s
favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
0120182654

3
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the
outcome of a case.

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. Here, Complainant
has failed to point with any specificity to particular evidence in the investigative file or other
evidence of record that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See 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, non-discriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has
met its burden, the 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. See St.
Mary's Honor Center 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant testified that he had PTSD as early as March 2014, and he submitted
documentation in June 2014 from his physician indicating that he was diagnosed with PTSD.
Complainant explained that he submitted this documentation as part of a reasonable
accommodation request and he stated that he had not submitted any medical documentation to
the Agency prior to June 2014. Complainant further explained that his PTSD decreases his
concentration and causes anxiety, low energy, irritability, lower mood, and sleep issues resulting
0120182654

4
in Complainant taking medication to treat this condition. Complainant stated that his PTSD
made it difficult for him to concentrate at work and it was aggravated by stress.2

Here the AJ’s analysis was confined exclusively to a determination that Complainant did not
establish a prima facie case of disparate treatment based his protected bases.

Our review of the record, however, indicates that the Agency also provided legitimate non-
discriminatory reasons for its actions, even though the AJ did not address this analysis.

Regarding claim 1, S1 explained that she had a discussion with Complainant on May 15, 2014 in
his cubicle regarding a service contact package Complainant was working on and Complainant
“became very upset” when she asked him to complete it “as soon as humanly possible because it
was a top priority.” S1 explained that Complainant then yelled at her, stated that “he could not
do anything right,” and accused S1 of wanting too much from him. S1 further explained that
Complainant picked up the keyboard, slammed it onto his desk, and then grabbed his backpack
and left. S1 stated that the incident left her “a little shocked” and employees in the office were
“kind of on edge” because the entire office heard the incident. S1 further stated that she was
informed that Complainant left and yelled down the hall way that he was taking FMLA. S1 was
previously scheduled to be on leave the day after this incident and S1 did not know when
Complainant would return or what Complainant’s mindset would be upon his return. S1
therefore explained that she informed her staff that Complainant had taken FMLA, she did not
know when he would return, and staff was responsible for tracking their own purchases and
contracts in Complainant’s absence. S1 also stated that she informed staff to contact security if
Complainant displayed violent behavior when he returned.

S1 clarified that she did not become aware of Complainant’s PTSD until June 2014 when
Complainant submitted a reasonable accommodation request. S1 stated that Complainant had
not submitted any medical documentation regarding his PTSD before June 2014.

Complainant’s second line supervisor (“S2”) stated that S1 informed him on or about May 19,
2014, that she had a discussion with Complainant where Complainant “stood up, yelled at her,
and slammed his keyboard down on his desk.” S2 explained that Complainant requested to meet
with him on May 20, 2014, regarding the incident where Complainant apologized for his actions
and expressed that S1 informed the staff that he suffered an emotional episode resulting from his
PTSD. S2 further explained that he did not become aware of LT1 allegedly providing a briefing
on workplace violence and instructing staff to notify security if they felt threatened by
Complainant until October 14, 2014.

S2 also stated that he confronted S1 on May 21, 2014 and inquired whether she had disclosed
Complainant’s medical condition to staff. S2 explained that S1 informed him that she had no
knowledge of Complainant’s medical history or condition. However, S1 stated that she did
advise staff to be aware of Complainant’s “erratic behavior.”

2 We presume, without so finding, that Complainant is an individual with a disability.
0120182654

5

TL1 denied having any knowledge of Complainant’s PTSD in May 2014 and stated that he only
learned after Complainant filed a formal complaint that Complainant had PTSD. TL1 denied
that S1 informed him, on May 19, 2014, that Complainant had PTSD. TL1 acknowledged that
he briefed staff on the May 19, 2014 altercation and informed them, that if such an incident
happened again or if staff felt concerned about safety, to inform office security. TL1 clarified
that he discussed the situation and not the individual involved during the May 19, 2014 incident.

TL2 stated that either TL1 or S1 informed him during the May 19, 2014 staff meeting that
Complainant had PTSD. However, TL2 stated that he was unaware of Complainant’s PTSD
prior to May 2014.

Complainant’s co-worker (“CW1”) testified that TL1 informed him on May 18 and 19, 2014 that
Complainant had PTSD. Another co-worker (“CW2”) also stated that TL1 informed him of
Complainant’s PTSD on May 19, 2014.

Complainant acknowledged, in his affidavit, that he had an “anxiety breakdown” at work.

Regarding claim 2, S1 stated that she sent an email to all staff who had previously requested
telework to ensure that those individuals had approved situational telework privileges under the
new Agency telework packets. S1 further stated that she did not include Complainant on the
email because he had never previously requested to telework. S1 explained that once she
became aware that Complainant was upset because he was not included on the email, S1 sent
him, and the one other employee who did not received the initial email, an email inquiring
whether they would be interested in being considered for situational telework and provided them
the procedures for completing the approval process.

S2 explained that this incident was a misunderstanding due to lack of communication between
S1 and Complainant. S2 further explained that all staff was required to fill out a situational
telework agreement in case of natural disaster or severe weather events.

Complainant stated, in his affidavit, that there was “no need for [him] to request to telework.”

Regarding claim 3, S1 testified that she was unaware that the classes Complainant sought were
all scheduled during the day when she first wrote a letter supporting that the classes would help
him enhance his job skills. S1 explained that she initially thought that classes Complainant
requested were night classes. S1 further explained that the classes Complainant sought to take
would require him to miss over 200 hours of work, and she could not approve that amount of
leave especially given the possibility she would not be his supervisor after June 30, 2014 due to a
reorganization. Instead, S1 stated that she approved Complainant to attend the first two classes,
which totaled 56 hours of approved administrative leave, and she deferred the remaining classes
to Complainant’s incoming supervisor for approval. S1 clarified that she did not remember
whether S2 recommended that she approve Complainant for three courses opposed to two.
However, S1 stated that she had not approved any employee for administrative leave for training
0120182654

6
exceeding 80 hours. S1 further stated that she offered Complainant an alternative work schedule
to make up hours missed for the remaining classes. Complainant, however, declined the offer
and indicated that he would take one day per month leave without pay which S1 approved, but
Complainant left the office the same day he had an anxiety breakdown.

S2 explained that Complainant had requested to attend several courses comprised of one to two
weeks each in duration which would have resulted in Complainant being away from the office
for “unacceptable period of time.” As a result, S2 stated that he recommended to S1 to allow
Complainant to attend three courses that did not exceed one week in duration and that were also
not contiguous.

We conclude that neither during the investigation, nor on appeal, has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on Complainant’s race and disability.

Hostile Work Environment

To the extent that Complainant alleged that all the matters raised in the formal complaint
constituted discriminatory harassment, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected basis – in this case, his race and disability.
Only if Complainant establishes both of those elements – hostility and motive – will the question
of Agency liability present itself. Here, as we have already concluded, Complainant simply has
provided inadequate evidence to support his claim that his treatment was the result of his race
and disability. A case of harassment is precluded based on our findings that Complainant failed
to establish that any of the actions taken by the agency were motivated by his protected bases.
See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

The Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

0120182654

7
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.
0120182654

8
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

October 9, 2019
Date