[Redacted], Wyatt W., 1 Complainant,v.James E. McPherson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2021000501 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wyatt W.,1 Complainant, v. James E. McPherson, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021000501 Hearing No. 530-2019-00362X Agency No. 18-00367-02469 DECISION On October 26, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 29, 2020 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND On May 15, 2017, Complainant was hired as an IT Specialist, GS-2010-09, at the Agency’s Naval Supply Systems Command, Business System Center (NAVSUP BSC), subject to a two- year probationary period. On August 10, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on disability (anxiety), age (over 40), and in reprisal for prior EEO activity (request for reasonable accommodation) 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. 2 2021000501 1. The Agency denied him reasonable accommodation when he was not permitted to take his dog, which he considers an emotional support animal, on a government-sponsored Meet the Fleet trip from September 18 - 21, 2017. 2. On or around April 26, 2018, the Technical Lead trained a younger, non-disabled employee to do Complainant’s job. 3. He was terminated from his position as an IT Specialist on May 10, 2018, and he was not provided with a Performance Improvement Plan (PIP) even though younger, non- disabled employees who had not engaged in protected activity were regularly offered PIPs to improve performance. This occurred only three weeks after he disclosed his disability and requested an Employee Assistance Program (EAP) to help deal with his anxiety disability.2 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). On February 13, 2020, the Agency filed a Motion for Summary Judgment. Complainant did not file a response in opposition to the motion until August 19, 2020. Subsequently, the AJ denied Complainant’s response as untimely. Thereafter, on October 2, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s decision. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS 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). 2 The record reflects that on October 11, 2019, the Administrative Judge (AJ) held an Initial Status Conference with the parties and entered a Scheduling Order in which the parties reframed the Complainant’s claims as claims 1 - 3. 3 2021000501 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 in Complainant’s favor. Reasonable Accommodation - Claim 1 Regarding claim 1, Complainant asserted that the Agency denied him reasonable accommodation when he was not permitted to take his dog, which he considers an emotional support animal, on the government-sponsored Meet the Fleet trip from September 18 - 21, 2017. Complainant was permitted to attend a voluntary “Meet the Fleet” training opportunity. Prior to departing on the Meet the Fleet event, Complainant claimed he spoke with the Protocol Officer concerning Complainant’s emotional support dog accompanying him on the Meet the Fleet visit. Complainant asserted that the Protocol Officer indicated that disabled employees were not permitted to go on the trip. The Branch Chief stated that Complainant did ask him if he could bring his dog on the trip, and he told Complainant that he did not think so but told him he would need to ask the trip organizer (the Protocol Officer). However, the Protocol Officer denied ever having a discussion with Complainant concerning a request to bring an emotional support animal on the Meet the Fleet trip. As such, the Protocol Officer indicated there was no denial of Complainant’s request. The Branch Chief indicated that Complainant never filed a reasonable accommodation request to have his support animal present at work at all. He stated that in April 2018, Complainant informed him that he was having anxiety problems and he granted him four days of sick leave to see his physician. Upon his return, the Branch Chief asked Complainant if he needed a reasonable accommodation and he answered “no.” The Branch Chief further stated the only medical documentation he received from Complainant was in the form of a doctor’s note which did not reveal a disability, and only revealed he was under the care of his physician for the four days of leave. In sum, we conclude the evidence of the record supports the AJ’s finding that Complainant never requested reasonable accommodation. Accordingly, we find that Complainant has not established that he was denied reasonable accommodation in violation of the Rehabilitation Act. 4 2021000501 Disparate Treatment - Claims 2 and 3 A claim of disparate treatment is examined under the three-party 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). Based on the evidence developed during the investigation of the complaint, we concur with the AJ’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 2, Complainant alleged that he was being replaced when on or around April 26, 2018, the Technical Lead was training a younger, non-disabled employee to do Complainant’s job. The Supervisor IT Project Manager (Project Manager) explained that the person referenced by Complainant was a new contractor who was anticipated to work alongside Complainant and other Agency employees on various IT projects. She stated that Personal Property Transportation Audit System (PPTAS) project included contractors and Complainant, and they all worked in the same position as developers on the team and “all were trained in all aspects of the system and standards to insure system consistency and efficiency.” She indicated the contractor was being assigned to assist in Complainant’s work because, in April 2018, the data entry module in which Complainant was working “was 4+ months behind schedule and the functional lead had identified 90 areas where the development work completed by the Complainant did not meet the specifications.” The Project Manager also stated that as part of her duties, she tracked the progress of each developer, including Complainant, using a work tracking system (Microsoft Team Foundation Service (TFS)). During the relevant period, she stressed to all team members that work estimates related to the project schedule needed to be up to date to enable staying on the project schedule. In March 2018, the Project Manager noted that Complainant had not updated the TFS tracking on his project for a period of two weeks, and Complainant had also missed an agreed upon deadline in the development of the project. The Project Manager stated that when she questioned Complainant about the failure to update the TFS tracking, he became upset and stated that he had no time to complete the update. The Project Manager acknowledged that the conversation was heated and asked him to stay and talk through the issue so he would not leave and drive home upset. 5 2021000501 Complainant agreed and at the conclusion of their discussion, both Complainant and the Project Manager apologized for raising their voices. Regarding claim 3, Complainant alleged that he was terminated from his position as an IT Specialist on May 10, 2018, and he was not provided with a PIP even though younger, non- disabled employees who had not engaged in protected activity were regularly offered PIPs to improve performance. He asserted this occurred only three weeks after he disclosed his disability and requested an EAP to help deal with his anxiety disability. The Branch Chief was the deciding official to terminate Complainant during his probationary period due to “Unsatisfactory Performance.” The Branch Chief stated Complainant’s inability to complete his assignments and “lack of candor caused significant work for other team members. His inability to perform the reason for his removal from his position.” The Branch Chief noted that Complainant was advised by his representative to request resigning instead of termination, but Complainant did not take his advice and told management to terminate him during his probationary period. At that time, the Branch Chief stated that she was not aware of Complainant’s disability. The record contains a copy of Complainant’s Notice of Termination dated May 10, 2018 in which the Branch Chief placed Complainant on notice that he would be removed effective May 10, 2018 based on the following details: (a) Complainant’s deadline for completion of the Data Entry Module had been extended three times since he failed to meet the previously established deadlines; (b) he spent 18 hours completing back end coding on an array for the Data Entry Module which should have been a 4-6 hour effort if he had followed the method directed by the Technician Lead; (c) he was instructed to complete Data Entry coding for a customer but he missed the deadline; and (d) a review of the Personal Property Transportation Audit System (PPTAS) Data Entry Application Specifications indicated significant number of issues with the Dara Entry Coding he performed and it was estimated 30-40 additional work days were needed to bring the coding to the standards outlined in the Application Specifications document. As a result, the Branch Chief determined that “due to the seriousness of your ongoing deficient performance I do not have confidence or trust in you to become a successful Federal employee. I therefore, have no other alternative but to conclude that your removal from Federal service is the only remedy that can adequately promote the efficiency of the Federal service.” Regarding the assertion that Complainant was not provided with a PIP even though younger, non-disabled employees who had not engaged in protected activity were regularly offered PIPs to improve performance, the Branch Chief explained that BCS does not put probationary employees on PIPs. She noted that during the first year, the employees are learning the job and their evaluation does not come until the end of the year. Here, the AJ found that the evidence of record did not establish that Complainant was subjected to discrimination based on disability, age, and prior protected activity. 6 2021000501 We concur with the AJ that the evidence developed during the investigation fully supports a finding that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by management witnesses for the disputed actions were pretext designed to mask disability or age or unlawful retaliatory animus. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination. 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 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). 7 2021000501 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. 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 8, 2021 Date