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

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2022002372 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Owen R.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022002372 Hearing No. 410-2020-00387X Agency No. 4U1L2000006H20 DECISION On March 16, 2022, 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 final action 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 action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resource Assistant, GS-0203-05, at Joint Base Charleston in Goose Creek, South Carolina. Complainant was hired on October 29, 2018, and he was subject to a two-year probationary period. On October 28, 2019, Complainant filed an EEO complaint alleging the following: 1. On or about January 1, 2019, to September 18, 2019, the Agency discriminated against him and subjected him to harassment on the basis of disability (mental) 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. 2022002372 2 a. Complainant was not offered training when moved to the Educational Services Office (ESO) section; b. Complainant was under-utilized in his duty section based on his education and skills; and c. On or about July 13, 2019, Complainant’s education was devalued by Complainant’s third-level supervisor (Supervisor-3). 2. The Agency discriminated against Complainant on the bases of disability (mental) and in reprisal for prior EEO activity under Title VII of the Civil Rights Act of 1964 when on or about September 18, 2019, Complainant was terminated from his position as a Human Resource Assistant. 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 (AJ). Complainant requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on September 21, 2021, finding no discrimination. 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 Agency employees relevant to the claims include the following: Complainant’s first-line supervisor from January 2019, until his termination (Supervisor-1); Complainant’s second-line supervisor (Supervisor-2); Complainant’s third-line supervisor from March 2019 to Complainant’s termination (Supervisor-3); a coworker within the ESO (Coworker-1); Complainant’s former supervisor from October 28, 2018, to January 2019 (Manager-1); and a Lead Human Resources Specialist (HR-Specialist). Claim 1a When Complainant was originally hired, he worked for the Separations section of Personnel Support Detachment (PSD). Complainant requested to be moved to a different section after a month and a half. Supervisor-2 granted the request and assigned Complainant to the ESO section in January 2019. Complainant claims that he was not offered training following the move to ESO. Complainant contends that he had only received training for basic functions rather than all ESO functions. Supervisor-3 reported that Complainant received on-the-job training (OJT) at ESO from Supervisor-1 and Coworker-1. Supervisor-3 explained that positions at PSD require only OJT, not any formal training. 2022002372 3 Claim 1b Complainant claims that he was under-utilized when he was stuck doing repetitive, remedial type tasks. Complainant stated that he is highly educated with an extremely strong background in leadership and management. Complainant reported having the following degrees: a Master’s in Human Resources Management, Bachelor’s in Business Administration, and an Associate’s in Criminal Justice. Supervisor-2 explained that Complainant was performing the duties required by his position description. Supervisor-3 noted that the positions at PSD require only a General Equivalency Degree (GED), not any formal education such as Bachelor, Master, or Doctorate degree. Claim 1c Complainant stated that the devaluing occurred during a mandatory career meeting with Supervisor-3. Complainant reported telling Supervisor-3 that he aspired to move up at PSD. Complainant stated that Supervisor-3 responded that she saw his resume and that Complainant’s Master’s in Human Resources would not help him there because “that’s not what they did” at PSD. Complainant reported that Supervisor-3 did not state that Complainant’s resume or background was impressive or anything complimentary. Complainant reported that at that point, he knew PSD was a dead end for him, at least while Supervisor-3 was there. Supervisor-3 denied devaluing Complainant’s education. Supervisor-3 stated that she met with Complainant and explained to him that his Human Resources (HR) experience might be a better fit elsewhere in the Agency (and Supervisor-3 provided an example). Claim 2 On September 18, 2019, Supervisor-3 issued Complainant a Notice of Termination of Employment During Probationary Period. The notice indicated Complainant’s position was terminated due to conduct unbecoming a federal employee and causing a disturbance in the workplace. In one instance on or about December 21, 2018, Manager-1 held a meeting with Complainant where a separate supervisor was present as a witness. According to Manager-1, Manager-1 asked a follow-up question and Complainant responded by “standing up, raising [his] voice, and demonstratively yelling loudly that [he] did not want to talk to [Manager-1].” Another instance on or about February 6, 2019, Complainant spoke with a coworker who reported that Complainant asked questions of the coworker “in an intimidating way with open arms in my face.” Regarding the meeting of December 21, 2018, Complainant admitted to standing up, raising his voice, and forcefully stating, “I Do Not Want To Talk To You.” Complainant admitted to the private discussion with the relevant coworker on February 6, 2019. Complainant did not dispute his physical positioning during the conversation. 2022002372 4 Reasonable Accommodation The AJ also analyzed the issue of whether Complainant was denied a reasonable accommodation despite such a claim not being part of the framed complaint (including as the complaint was defined by the AJ). The AJ stated that Complainant was arguing that he would not have been terminated if he been granted an accommodation. On July 18, 2019, Complainant faxed an application for a reasonable accommodation to HR-Specialist. On the form, Complainant “respectfully request[ed] to be reassigned out of PSD to a work environment that’s more conducive to my service connected mental disability, healing and wellness, and more commensurate with my background and education.” In response to the question of what job function Complainant was having difficulty performing, Complainant reported some of his symptoms, that he had required mental health treatment, and that on “many days it is extremely difficulty to focus.” HR-Specialist stated he became aware that there were significant concerns about Complainant’s personal conduct and that removal action was being taken. HR-Specialist stated that Complainant’s request was not reasonable in that there was no evidence of inability to perform the essential elements of the job and no evidence of employment opportunities that he could not perform because of a disability. The AJ found that Complainant was not denied a reasonable accommodation. 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. Subjective belief or speculation as to motive, intent, or pretext is not sufficient to satisfy the complainant’s burden. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). 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. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a 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). 2022002372 5 In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. 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); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her or his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2022002372 6 Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that complainant was denied a reasonable accommodation, complainant must show that: (1) he or she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he or she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). Under the Commission’s regulations, 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. 29 C.F.R. §§ 1630.2(o), 1630.2(p). Disparate Treatment and Harassment For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged basis. We find that the Agency has articulated legitimate, nondiscriminatory reasons for the personnel actions at issue. Regarding claim 1a, Supervisor-3 noted that Complainant received OJT from Supervisor-1 and Coworker-1. Supervisor-3 explained that PSD requires only OJT rather than any formal training. Regarding claim 1b, Supervisor-2 explained that Complainant was performing the duties required by his position description. Supervisor-3 noted that the positions at PSD require only a GED rather than any formal education. Regarding claim 2, the notice indicated that Complainant was terminated from his position due to conduct unbecoming a federal employee and causing a disturbance in the workplace. After a review of the record, we find Complainant failed to show that the Agency’s articulated reasons for the discrete adverse employment actions were a pretext for discrimination. Rather, Complainant relies on his unsupported assertions, speculation, and belief. Regarding claim 2, Complainant also admitted to raising his voice at Manager-1 during the meeting. Regarding the claim of harassment, we find that Complainant failed to prove that the conduct complained of was based on Complainant’s membership in a statutorily protected class. The record does not contain evidence that similarly situated employees not in Complainant’s protected groups were treated differently under similar circumstances for any of the claims. Furthermore, even if the actions at issue in claim 1 occurred as alleged, we find that they are not sufficiently severe or pervasive as to constitute a hostile work environment. 2022002372 7 Reasonable Accommodation To the extent that Complainant is raising a denial of reasonable accommodation claim, we find the claim to be unsupported by the evidence of record. We will assume without deciding, for the purposes of this decision, that Complainant was an individual with a disability. Complainant “respectfully request[ed] to be reassigned out of PSD to a work environment that’s more conducive to my service connected mental disability, healing and wellness, and more commensurate with my background and education.” A request for an accommodation of a non- hostile or a stress-free work environment generally cannot be considered a request for reasonable accommodation. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120180356 (May 17, 2019) (citations omitted). Furthermore, we find that Complainant did not show how such an accommodation was necessary for his condition. See id. Even if the request were understood to be for reassignment in general, Complainant failed to identify essential duties that he could not perform in his (then) current position. Therefore, Complainant failed to allege facts that showed he was denied a reasonable accommodation. CONCLUSION Accordingly, the Agency’s decision finding no discrimination is AFFIRMED. 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. 2022002372 8 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. 2022002372 9 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 March 2, 2023 Date