[Redacted], Arthur J., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jul 27, 2022

Appeal No. 2021002720 (E.E.O.C. Jul. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arthur J.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021002720 Hearing No. 550-2016-00294X Agency No. 4Y1L15007 DECISION On April 8, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), 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 relevant time, Complainant worked for the Agency as a Recreational Assistant at Fairchild Air Force Base (AFB) Spokane, Washington. On August 26, 2015, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on disability and unlawful retaliation of engaging in prior protected EEO activity. In his complaint, Complainant raised the following issues: 1. Was Complainant discriminated against 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. 2021002720 2 a. On June 12, 2015, Agency officials refused to document receipt of Complainant's EEOC Forms 577 (Request for Accommodation) and refused to document the approval or denial of EEOC Forms 577; and b. On June 12, 2015 to the present, Complainant's supervisor has not agreed to discuss Complainant's request for accommodation. 2. Was Complainant subjected to a hostile work environment when, on or about June 12, 2015, Agency officials: a. Refused to modify or adjust the work environment and commitments to provide the Complainant with adequate hiring, placement and advancement opportunities; b. Refused to discuss career expectations with Complainant; c. Refused to make any provision for constructive feedback and assistance with development of appropriate goals and the path to achieving them for Complainant; d. Refused to provide coaching on technical, interpersonal, and management skills for Complainant; e. Refused to make any provisions for networking contacts, references, and introductions for Complainant; f. Refused to provide job rotations for Complainant; g. Refused to provide job enrichment to Complainant; and h. Delayed acknowledging receipt of oral requests for accommodation from Complainant made in an April 7, 3015 meeting until June 12, 2015. 3. From October 1, 2014 to September 30, 2015, Agency officials subjected Complainant to the following: a. Denied Complainant mandatory constructive midterm feedback; b. Denied Complainant mentoring; and c. Mismanaged and destroyed Complainant's official records. 4. From October 1, 203 to September 30, 2015, Agency officials knowingly and willfully kept secret from employees, the fact that there was a Disability Program Manager (DMP) on Fairchild AFB. 5. On or about August 21, 2015, Complainant's supervisor refused Complainant's representative’s request to provide his services to Complainant. 2021002720 3 Following an 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). Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision by summary judgment in favor of the Agency on February 12, 2021, finding no discrimination or unlawful retaliation was established. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. 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 nonmoving 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. 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 failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. 2021002720 4 Denial of Reasonable Accommodation: Claims 1 - 3 Under the Commission's regulations implementing the Rehabilitation Act, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2 (o) and (p). See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act. EEOC No. 915.002 (Oct. 17. 2002) (“Enforcement Guidance”). As a teenager, Complainant was diagnosed with chronic encephalomalacia, very mild right hemiparesis and sensory deficits, decreased visual acuity, and learning disabilities. Since the 2001 medical diagnoses, the record contains a Neuropsychological Evaluation done in June 2012. Consistent with the earlier report, the 2012 evaluation determined that Complainant has a medical history for left temporal and inferior left occipital lobe infarct that occurred in utero. The evaluation also stated that Complainant reports doing well from a cognitive perspective. He acknowledged slowed thinking and poor memory for names, and stated it takes him longer to learn new tasks. The record shows, and Complainant stated, that he has successfully performed his job with the Agency for approximately 10 years and was able to perform all the functions of his position. It appears, however, that Complainant was interested in career development and alleges that the Agency refused to acknowledge receipt of his reasonable accommodation forms and denied his requests for reasonable accommodation in the form of enrichment training, technical and interpersonal coaching, mentoring, career counseling, as well as assistance with references and networking.2 The AJ concluded the Agency was not obligated under the Rehabilitation Act to provide Complainant with the requested career enrichment and development assistance because these accommodations were not related to his ability to successfully perform the essential functions of his current job. On the other hand, Complainant’s supervisor explained a number of other accommodations Complainant was being provided that assisted him in the performance of his job, including the creation of special calendar and providing him with careful instructions. Both the supervisor and Complainant seem in agreement that he has been successfully performing the essential functions of his position for years. The Commission's regulations at 29 C.F.R. § 1630.2(o)(1) provide that, under the Rehabilitation Act, “reasonable accommodation” is defined as: • Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires. 2 The record indicates that Complainant’s father, serving as his representative, made the accommodation requests. 2021002720 5 • Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability, who is qualified, to perform the essential functions of that position. • Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. Here, we agree with the AJ’s conclusion that Complainant’s accommodation requests at issue do not related to any of these three definitional circumstances. First, while Complainant is interested in career development, he has not asked for an accommodation that directly relates to an actual job application process. Second, the accommodations requested are not related to Complainant’s performance of the essential functions of his current job or any other specific job he is seeking. Finally, Complainant has not produced any evidence that the “accommodations” he is requesting are being provided to any other similarly situated employees without disabilities. As determined by the AJ, Complainant appears to conflate what is required as a reasonable accommodation under the Rehabilitation Act with the aspirational goals of federal affirmative action for individuals with disabilities. As already noted, Complainant is entitled to reasonable accommodation in the job application process, to perform the essential functions of his job, and to secure benefits and privileges of employment equal to those enjoyed by employees without disabilities. Efforts that go beyond these three areas and target career development may be highly encouraged, but they are not legally enforceable under the EEOC’s federal sector regulations if comparable measures are not provided to non-disabled employees. Accordingly, we affirm the AJ’s conclusion that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Harassment/Hostile Work Environment Claims 4 & 5 To prove his harassment/hostile work environment claim, 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 a protected basis - in this case, his disability and prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 2021002720 6 Complainant alleges that he was harassed and subjected to a hostile work environment by supervisory Agency officials, and that the actions included these officials knowingly and willfully keeping secret the fact that there was a Disability Program Manager on Fairchild Air Force Base and refused the request of Complainant's representative to provide his services to Complainant. As the AJ properly determined the subject claims are generally related to Complainant’s claim concerning the Agency’s failure to provide him with career-enhancing supports which we have already addressed. In addition, there is no evidence that Complainant was individually subjected to conduct that was hostile or abusive. Complainant’s own assertion is that no employee, not just himself, was aware of the existence of the Disability Program Manager at the base. As such, he is asserting a generalized grievance and has not shown that this matter was directed at him personally. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the AJ’s decision without a hearing fining no discrimination or unlawful retaliation, which had become the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2021002720 7 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021002720 8 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 July 27, 2022 Date