Aron J.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 20, 2019

0120182395 (E.E.O.C. Sep. 20, 2019)

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

Aron J.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120182395

Hearing No. 440-2015-00029X

Agency No. ARMEPCOM14FEB00448

DECISION

On June 21, 2018, 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
May 22, 2018, final order concerning his equal employment opportunity (EEO) complaint alleging
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. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

ISSUE PRESENTED

The issue on appeal is whether the Equal Employment Opportunity Commission’s Administrative
Judge erred when he issued a decision without a hearing which found that Complainant was not
subjected to discrimination or harassment.

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.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Administrative
Service Technician, GS-7 at the Agency’s San Antonio Entrance Processing Station in North
Chicago, Illinois. On March 31, 2014, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American), sex (male), color
(Black), disability (Post Traumatic Stress Disorder (PTSD), panic attacks/anxiety), and reprisal for
prior protected EEO activity when:

1. On February 10, 13 and 25, 2014, he was subjected to sexual harassment based on
sex (male) by the Captain (C-1) when she brushed her breasts against his chest
during an unwelcome embrace while holding him in a tight manner and sexually
teased him by wearing a t-shirt showing her erect nipples;
2. He was subjected to discrimination based on disability (mental - PTSD and anxiety
panic attacks) when:
a. On December 2, 2013, C-1 directed him to leave the building following a panic
attack, to take administrative leave and not to return until he had a note from his
doctor;
b. On or about January 13, 2014, C-1 requested a fitness for duty examination be
conducted on him;
c. On or about January 31, 2014, C-1 and the Major (M-1), informed him that his
position as a GS-0303-07, Administrative Service Technician was posted on
USAJOBS;
d. On February 13, 2014, C-1 alleged a decline in his ability to effectively perform
your duties;
e. On February 18, 2014, he underwent a fitness for duty examination by
Occupational Health which was scheduled by C-1;
3. He was subjected to discrimination based on race (African-American), color
(black), and sex (male) when:
f. On February 10, 2014, his personal items were moved or thrown away and three
of his Federal Express (FEDEX) accounts were closed by another Captain (C-2);
g. On February 18, 2014, he underwent a fitness for duty examination;
h. On March 18, 2014, he was instructed to clock in and out using the computer
during a meeting conducted by C-2 and the First Sergeant (S-1);
4. He was subjected to discrimination based on race (African-American), color
(black), disability (mental - post-traumatic stress disorder and anxiety panic
attacks) and reprisal when:
i. On or about November 25, 2013, C-2 went behind his desk on several occasions
to look over his shoulder to observe his work;
j. On April 11, 2014, C-2 required him to work his regular duty hours when all other
employees were released early.

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
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Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant’s objections, the AJ assigned to the case granted the Agency’s April 5, 2018,
motion for a decision without a hearing and issued a decision without a hearing on May 2, 2018.
The Agency found that assuming Complainant established a prima facie case of discrimination as
to all his bases, the Agency articulated legitimate nondiscriminatory reasons for its actions.
Specifically, the Agency found that with respect to claim no. 1, C-1 denied sexually harassing
Complainant. She explained that she always wears a sports bra, but she insisted that she does not
hug male employees as she was once a victim of an assault. She also explained that due to a
medical condition, she was unable to have erect nipples. Notwithstanding, the Agency indicated
that as soon as Complainant reported that he felt he was being sexually harassed, he was told who
to contact to file a complaint and was assigned a new supervisor. The Agency maintained that it
took immediate and prompt action to address Complainant’s assertion.

Regarding claim no. 2, management explained that Complainant was asked to leave the building
because he had a panic attack that involved severe convulsions. Complainant was told to undergo
a fitness for duty examination (FFDE), because management was unaware of the extent and
duration of the absence Complainant would experience because of his impairment. Management
also ordered the FFDE because they were concerned that Complainant was a hazard to himself
and because his sister was concerned about the severity of his convulsions. Further, with respect
to advertising Complainant’s job in USAJOBS, management indicated that the position was a
temporary position that was going to be used to back up Complainant due to his ongoing need for
medical treatment.

With regard to items being removed from Complainant’s work area, management explained that
Complainant’s items were removed in preparation of an Inspector General’s inspection.
Management indicated that after Complainant complained that his things had been moved,
Complainant was taken to where his items were being stored. With regard to Complainant’s claims
that he was told to clock in and out, management denied this but admitted that Complainant was
told to inform his supervisor what work he planned to do that day, and in the evening, he was to
document what work he had accomplished. C-1 maintained that Complainant’s performance had
been steadily decreasing, so they wanted to monitor his workload.

Finally, with respect to Complainant’s claim that C-2 looked over his shoulder, C-2 explained that
he did this to everyone, especially when he wanted to see what they were working on. Regarding
Complainant’s claim that he was left behind in the office while other employees got to go home
early, C-2 indicated that he did not recall dismissing everyone except Complainant. Nevertheless,
when Complainant complained about this, management told him that he could take comp time or
administrative leave the following Monday. The AJ found that Complainant did not demonstrate
that the Agency’s reasons were pretext for discrimination or that the incidents complained of were
severe or pervasive enough to establish a hostile work environment.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination or harassment as alleged.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that the AJ did not consider his objection
to the Agency’ response on summary judgment. He argues that had the AJ considered his
pleadings, a finding of pretext would have been established. Complainant also maintains that
contrary to the AJ’s assertions, he did serve a copy of his pleadings on the Agency.

In response, the Agency contends, among other things, that the AJ gave exact dates when the
pleadings were due. Moreover, the Agency argues that Complainant was given the opportunity to
respond to the Agency’s summary judgment motion as he filed an opposition to the motion for
summary judgment. He failed however to provide any facts which resulted in a showing of
discrimination. Further, the Agency maintains that the decision showed that the AJ had in fact
accepted Complainant’s responsive pleading as filed; therefore, the issue is moot. The Agency
contends that the AJ correctly found that Complainant did not demonstrate that he was subjected
to discrimination, and the incidents raised by Complainant were not severe or pervasive enough to
establish a hostile work environment. The Agency requests that its final order be affirmed.

ANALYSIS AND FINDINGS

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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).

We must first determine whether the AJ appropriately issued the decision without a hearing. 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
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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.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant has not
identified any material facts that supports his claim that a summary judgment was inappropriate.
In fact, Complainant replied to the Agency’s motion and other than his disagreeing with the
Agency’s arguments, he did not show that material facts were at issue.

Disparate Treatment

Claims 2(a), 2(c), 2(d), 3(f), 3(h),4(i), and (j)

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume, arguendo, Complainant established
a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons
for its actions, as listed above and Complainant did not show that the reasons were pretext for
discrimination. In fact, Complainant did not provide any evidence which showed that
discriminatory animus was involved in the Agency’s decisions.

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Fitness For Duty/Medical Inquiries

Claims 2(b), 2(e), and 3(g)

Whether or not Complainant is an individual with a disability is irrelevant to the issue of whether
the Agency properly requested he submit to medical examinations because the Rehabilitation Act’s
limitations regarding disability-related inquiries and medical examinations apply to all employees.
See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act (Enforcement Guidance on Disability-
Related Inquiries), No. 915.002 (July 27, 2000). The inquiry may be made, or the examination
ordered only if it is job-related and consistent with business necessity. See 29 C.F.R. §§
1630.13(b), 1630.14(c). This means that the employer must have a reasonable belief based on
objective evidence that an employee will be unable to perform the essential functions of his or her
job or pose a direct threat because of a medical condition. Enforcement Guidance on Disability-
Related Inquiries, at Q.5. Objective evidence is reliable information, either directly observed or
provided by a credible third party, that an employee may have or has a medical condition that will
interfere with his ability to perform essential job functions or will result in direct threat. Id. It is
the burden of the employer to show that its disability-related inquiries and requests for medical
examination are job-related and consistent with business necessity. See Solomon B. v. Dep’t of
Homeland Sec., EEOC Appeal No. 0120162325 (Jan. 25, 2018) (citing Complainant v. Dep’t of
Homeland Sec., EEOC Appeal No. 0120060363 (Oct. 9, 2007)).

Based on the record, we find that the Agency directed Complainant to report for medical
examinations and made other medical inquiries that were for reasons that were job related and
consistent with business necessity. Like the AJ, we find that the record reveals that Complainant
has PTSD and panic/anxiety attacks and that C-1 and M-1 were aware of Complainant’s condition;
on December 2, 2013, Complainant had a panic attack which involved convulsions and was
witnessed by C-1 and M-1; on December 2, 2013, M-1 issued a memo to Complainant placing him
on administrative leave until December 6, 2013; Complainant was under medical treatment and
was excused from work until December 9, 2013 through January 13, 2014, and on or about January
13, 2014, it was requested that Complainant undergo a fitness for duty exam to make an
administrative determination as to the nature, severity and duration of his medical condition and
the impact of such on Complainant’s ability to successfully perform the duties of his position. The
examination took place on February 18, 2018. The record supports the AJ’s determination that the
request that Complainant undergo a fitness for duty exam resulted from the unknown duration of
his impairment, the possible threat to himself, the concern his sister had for him and the severity
of his convulsion.

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Harassment

Claim (1)

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the complainant’s employment. See EEOC Notice No. 915.002, Enforcement
Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of
harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2)
he or she was subjected to unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected class; (4) the harassment
had the purpose or effect of unreasonably interfering with her work performance and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No.
01965238 (Oct. 16, 1998).

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” See also Oncale v. Sundowner Offshore
Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work
environment [is created when] a reasonable person would find [it] hostile or abusive” and the
complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22.

Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined
by looking at all the circumstances, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Id. at 23. An abusive
or hostile working environment exists “when the workplace is permeated with discriminatory
intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the condition of the
victim’s employment.” Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and
severe, a single incident, or group of isolated incidents, will not be regarded as discriminatory
harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep’t of
Labor, EEOC Request No. 05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request
No. 05960227 (June 10, 1996).

We find, under the standards set forth in Harris, Complainant’s claim of hostile work environment
with respect to claims 2(a), 2(b), 2(c), 2(d), 2(e), 3(f), 3(g), 3(h), 4(i), and 4(j) must fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of these actions taken by the Agency were motivated by
discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(Sept. 21, 2000).

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With respect to claim 1, we would first note C-1’s specific denials of Complainant’s accusations;
however, given the posture of this matter, we must believe Complainant’s evidence and must draw
justifiable inferences in his favor. Assuming these three incidents occurred, we find no evidence
of severe or pervasive conduct that rises to the level of unlawful harassment. Complainant did not
report these incidents when they allegedly took place, nor did he inform C-1 that he was
uncomfortable by her hugging him. In March, when he spoke to M-1, he was immediately advised
to file a complaint, and he was removed from under C-1’s supervision the next day. We find that,
even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor
regarding claim 1.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final order which found that Complainant did not
demonstrate that he was subjected to discrimination or harassment.

STATEMENT OF RIGHTS - ON APPEAL
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.
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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.
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

September 20, 2019
Date