[Redacted], Winford M., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor (Mine Safety & Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 21, 2022

Appeal No. 2021001553 (E.E.O.C. Apr. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Winford M.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor (Mine Safety & Health Administration), Agency. Appeal No. 2021001553 Hearing No. 420-2017-00324X Agency No. 17-04-032 DECISION 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 10, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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 period at issue, Complainant worked as an Office Assistant, GS-5, at the Agency’s Southeast District Office in Birmingham, Alabama. On January 4, 2017, Complainant filed a formal EEO complaint claiming that the Agency’s Mine Safety and Health Administration (MHSA) subjected Complainant to a hostile work environment based on disability (disabled veteran with condition of neck/spine) when: 1. On various dates in 2016, Complainant overhead a management official state that disabled veterans are “sucking the taxpayers” and “don’t work.” Complainant 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. 2021001553 2 also alleged that this same management official, in reference to a list of applicants for a job, stated, “[t]here better not be another disabled vet on that list - look what happened with the last one.” 2. On or around June 6, 2016, the District Manager cancelled Vacancy Announcement No. MS-16-ATL-MSHA-MNM-040 for the position of Management and Program Analyst, so that Complainant could not be selected for the job. After an investigation, the Agency provided Complainant 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. On August 31, 2020, the Agency filed a motion for summary judgment. Thereafter, Complainant submitted an opposition. On September 28, 2020, the AJ issued a decision by summary judgment finding no discrimination was established. On November 10, 2020, the Agency issued a final order implementing the AJ’s decision. The instant appeal followed. 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). 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. 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. 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. 2021001553 3 Disparate Treatment - (Claim 2) 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 complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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 in 2015 he was diagnosed with multiple bulging discs in his neck and lower back sustained from his prior service in the military. Complainant explained that because of these injuries, he underwent neck surgery in March 2016 while he was working at the Agency. Complainant indicated that surgery resulted in him missing one week of work, and he returned to work wearing a neck brace for a short time, which Complainant’s first level supervisor (S1) also acknowledged. However, Complainant clarified, and S1 confirmed, that he did not have any work restrictions because his job was mostly sedentary, and he did not request a reasonable accommodation. Nevertheless, Complainant indicated that he had slight mobility problems, chronic pain, arthritis, strength issues, and difficulty standing and sitting for long periods without causing pain. Complainant further testified that he provided his first level supervisor (S1) with a certified letter from the Department of Veterans Affairs indicating that he was an over 30 percent disabled veteran. A copy of the certified letter, dated August 25, 2016, is included in the record. The letter notes that Complainant was “entitled to compensation for service-connected disability(ies) which are at least 30 percent or more disabling.” 2021001553 4 Complainant also asserted that it was general knowledge that he was a disabled veteran because Complainant and other employees who were veterans would openly discuss their dealings with the Department of Veterans Affairs, as well as their overall veteran experience. We presume for purposes of analysis only, and without so finding, that Complainant is an individual with a disability. In her decision, the AJ summarily granted the Agency’s August 31, 2020 motion for summary judgment. The AJ found that, after reviewing all evidence in the record as well Complainant’s opposition to the Agency’s motion, the evidence failed to support that Complainant was subjected to unlawful discrimination based on disability. We agree with the AJ’s findings, as adopted from the Agency’s Motion, that the Agency articulated legitimate, non-discriminatory reasons for canceling the position vacancy at issue. Complainant testified that he applied for the position, but he was informed, right before scheduled interviews,2 that the vacancy was canceled. Complainant acknowledged that S1 generally informed everyone that the vacancy was canceled due to budgetary constraints. Complainant’s second level supervisor (S2) was the responsible management official who canceled the position vacancy. S2 explained that S1 posted the position vacancy. However, the position was incorrectly posted for all MHSA employees instead of only being available to metal/nonmetal section employees who were already employed by the Agency. Because the position was advertised for all MHSA employees, the Agency would have incurred an additional cost of adding another full-time employee while the Agency would not have incurred this cost if eligible candidates were limited to current employees in the metal/nonmetal section. S2 reasoned that the Agency did not have an approved budget to fund additional full-time employees. Without an approved budget to fill the vacancy as posted, S2 indicated that the vacancy was cancelled. We note that the record reflects that S1 explained that a candidate, who was S1’s former employee, submitted an email between June 1, 2016 and August 10, 2016, to the Deputy Assistant Secretary alleging that she had not been given a fair opportunity to apply for the position. Nevertheless, both reasons S2 and S1 provided indicate that the cancellation was unrelated to Complainant’s disability. Additionally, the position vacancy was cancelled in June 2016, approximately two months before Complainant officially shared his August 2016 certified letter with S1 indicating that he had a service-connected disability. After careful consideration of the record, 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 disability. 2 Complainant indicated that he was verbally told that he would have an interview. 2021001553 5 Consequently, Complainant’s additional claim of discriminatory harassment as evidenced by the events in claim 2 is precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his disability. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Harassment - (Claim 1) To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) 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 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 to the Agency. 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). In other words, to prove his harassment 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. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our review of the record supports that the AJ correctly determined that Complainant was not subjected to discriminatory harassment as alleged. Although S2 denied making any of the statements in questions, Complainant asserted that S2 did. Specifically, Complainant testified that he believed that S2 made the statements: veterans “sucking the taxpayers” and veterans “don’t work” during a conversation about S2’s wife’s ex- husband. S1 provided context regarding the comment S2 made about his wife’s ex-husband. S1 explained that S2 had commented that his wife’s ex-husband was wheelchair bound and applied for VA disability, but after his disability was granted, S2 mentioned that the ex-husband had a “miraculous recovery.” Consequently, S1 indicated that S2’s derogatory comment was directed towards S2’s wife’s ex-husband, and not Complainant. S1 further indicated that he never heard S2 make any comments regarding Complainant’s disability veteran status and S2 denied ever having any discussion about Complainant’s service-connected disability. Regarding the statement expressing a preference not to hire a disabled veteran, Complainant explained that he witnessed S2 making the remark in question in front of S1. Complainant further explained that S1 was stating that he had resumes for a vacant clerk position in Macon, Georgia, and S2 responded that he hoped that there were no disabled veterans on the list. S1 confirmed that he heard S2 make the comment at issue. 2021001553 6 S1 explained that the Agency had previously hired a disabled veteran working in Knoxville who “had issues” preforming on the job, and S2 commented that there not be another disabled veteran on the candidate list for another clerk position in Macon, Georgia. Considering these claims, even if true, Complainant has not produced evidence that considerations of his disability motivated management’s actions toward Complainant. Here, the record supports that none of the comments, albeit inappropriate, at issue were about or directed towards Complainant. Complainant even acknowledged that the first two comments were about S2’s wife’s ex-husband. Additionally, the comment about not hiring a disabled veteran was not about Complainant. Rather, it concerned a position in a different location, and the comment was unrelated to the position Complainant applied for that was subsequently cancelled in June 2016. The record establishes that, even if these comments occurred, the fact that they were isolated in nature and not directed at Complainant supports the AJ’s determination that Complainant was unable to establish that he was subjected to a discriminatory hostile work environment of sufficient pervasiveness or severity to constitute a violation of the Rehabilitation Act. CONCLUSION The AJ’s issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. The Agency's final order implementing the AJ's finding of 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). 2021001553 7 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 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. 2021001553 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 April 21, 2022 Date