0120151456
11-29-2017
Brant C.,1 Complainant, v. Elaine C. Duke, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brant C.,1
Complainant,
v.
Elaine C. Duke,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120151456
Hearing No. 451-2014-00169X
Agency No. HS-ICE-23304-2012
DECISION
On March 12, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 9, 2015, final decision 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 decision.
ISSUES PRESENTED
The issue presented herein is whether Complainant has established by preponderant evidence that he was harassed on the bases of disability (perceived mental) and reprisal when he was: subjected to a hostile work environment, treated disparately, and the subject of several disability-specific violations from May 2, 2012, to November 6, 2012.2
BACKGROUND
During the period at issue, Complainant was employed as a Special Agent, GS-1811-15, at the Agency's Division of Homeland Security Investigations in Laredo, Texas. On February 21, 2013, he filed a formal EEO complaint in which he alleged the claims set forth in the "Issues Presented" section of this decision. The Agency accepted the complaint for investigation.
After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but, in a letter dated October 31, 2014, subsequently withdrew his request. Consequently, the complaint was remanded to the Agency for the issuance of a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency complied with the AJ's order and issued its final decision on February 9, 2015, finding that Complainant did not establish discrimination as alleged. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the harassing actions taken against him were based on a misperceived notion that he misused alcohol and/or anti-depressant medications. He further contends that the proof he submitted to support the hostile work environment allegation in his formal complaint were valid and specific. Finally, he contends that the Agency's final decision was based on the "slightest of facts," and should therefore be vacated. See Complainant's May 22, 2015 Final Submission in Support of [Complainant's] Appeal.
For its part, the Agency contends that it has provided legitimate business reasons for its actions and requests that we affirm its final decision. See Agency's June 29, 2015 Agency's Response to Complainant's Appeal of Final Agency Decision.
Both parties' contentions on appeal are considered in the "Analysis and Findings" section below.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
I. COMPLAINTANT'S ALLEGATIONS
Complainant alleged discrimination when the following events occurred:
1. on May 2, 2012, the Agency reclaimed his firearm, took away his computer equipment, instructed him not to affix quotations to his email signature block, reassigned him from his most important case, threatened to transfer him to the Alien Smuggling Group (ASG), and excluded him from financial group emails;
2. on May 31, 2012, he received a letter from the Agency's Fitness for Duty Coordinator (FFDC) Coordinator requesting permission to speak with this physician;
3. on August 13, 2012, he was ordered to undergo a fitness for duty examination (FFDE);
4. on September 6, 2012, his grade and step were lowered because he did not graduate from the ICE academy;
5. on September 14, 2012, he was instructed to undergo a psychiatric examination scheduled for September 26, 2012;
6. during the week of October 1, 2012, he learned he was being reassigned to the ASG;
7. on October 17, 2012, the Assistant Special Agent in Charge (ASAC) informed the Group Supervisor (GS1) he was on anti-depressant medications;
8. on October 17, 2012, he was tasked with writing a proposal for a major human trafficking case;
9. on October 18, 2012, he was informed that he was on thin ice;
10. on October 18, 2012, management denied him the opportunity to participate in quarterly firearms qualifications and defensive tactics training;
11. on October 19, 2012, the ASAC instructed him not to contact him directly but go through the chain-of-command;
12. on October 23, 2012, he was mandated to work daily from 8:30 a.m. to 6:00 p.m. every day;
13. on October 24, 2012, he was informed that his government-issued vehicle was reassigned to a junior employee;
14. on October 31, 2012, the FFDC requested additional information from his doctor; and
15. on November 6, 2012, he received an unduly low annual performance rating.
II. PROCEDURAL DISMISSALS
Untimely EEO Counselor Contact
The Agency dismissed allegations 1 and 2 for untimely EEO counselor contact, i.e., failure to bring these matters to the attention of an EEO Counselor within 45 days. The record reflects that allegation 1 occurred on May 2, 2012, and allegation 2 occurred on May 31, 2012. Respectively, these allegations were not raised before an EEO Counselor until 91 and 62 days beyond the regulatory time limit, specifically, on September 28, 2012. See EEO Counselor's Report, ROI, Exhibit (Ex.) G-4. Upon review, we find that the Agency properly dismissed these allegations for untimeliness, and their dismissals are AFFIRMED.
III. DISPARATE TREATMENT
Allegations 4 - 8, 10, 12, 13 and 15, are disparate treatment allegations (as they are separate, discrete acts) and will be analyzed as such.3 In these allegations, Complainant alleged he was treated differently when: his pay grade and step was lowered on September 6, 2012; he was reassigned to the ASG on the week of October 1, 2012; he was assigned to write a proposal for a major human trafficking case on October 17, 2012; he was mandated to work from 8:30 a.m. to 6:00 p.m. every day; he was informed that his government-issued vehicle was reassigned to a junior employee; and he received a lowered performance appraisal on November 6, 2012.
As these are disparate treatment allegations, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, Complainant must prove by preponderant evidence that the legitimate reasons proffered by the Agency were pretexts for discrimination. Id. at 256. We presume, without so finding, that Complainant established prima facie cases of disability and/or reprisal.
Now, we examine the legitimate, nondiscriminatory reasons provided by the Agency as to why or whether it took the actions claimed to be discriminatory. The Agency stated that Complainant was ordered to undergo a FFDE on August 13, 2012, because his supervisor had concerns regarding his ability to perform his job. See ROI, Ex. F-7 at 5 - 28. According to the Agency, this concern was based on Complainant's slurred speech pattern, time and attendance record, and statements Complainant made about taking anti-depressant medications. Id. The Agency further stated that, on September 14, 2012, Complainant was instructed to undergo a psychiatric evaluation scheduled for September 26, 2012, based on the results of his FFDE. Id. The Agency provided those results, which revealed that Complainant was under tremendous stress stemming from, among other things, his divorce, his son's passing, and financial strain. See ROI, Ex. F8 at 17 - 49.
On October 17, 2012, GS1 was informed by the ASAC that Complainant was taking anti-depressant medication as he had just been named Complainant's new supervisor. The ASAC stated that he informed GS1 of Complainant's situation to afford him information to effectively management his employees. See ROI, Ex. F-7 at 5 - 28.
Regarding the reduction in grade and step allegation, which occurred in 2008 but Complainant did not become aware of it until September 6, 2012, the Agency stated that due to an administrative error Complainant was prematurely promoted, and when the error was discovered, it was corrected. According to management, the error stemmed from the fact that Complainant was unable to complete ICE Academy training as he had been in a car accident after he transferred to the Agency from Border and Patrol. Once the error was discovered, however, Complainant was paid at the correct rate. See Agency Emails, ROI, Ex. 17 at 1-4.
The ASAC further stated that Complainant was reassigned to the ASG because on October 1, 2012, the ASAC reorganized to more effectively carry out the functions of the Agency by combining two financial groups in his office. The ASAC clarified that this change was needed because the human smuggling group was being overwhelmed, and as such, he could no longer afford to have two financially-themed groups. The ASAC noted that every member of Complainant's group was reassigned with some going to the remaining financially-themed group while others went to an ASG. See ROI, Ex. F-7, at 9. The ASAC acknowledged that he informed his employees that those not performing at the level expected would be reassigned to an ASG, and after he looked at the offices statistics, he decided to reassign Complainant and most of his colleagues to an ASG. Id.
GS1 affirmed that he tasked Complainant with writing an Organized Crime Drug Enforcement Task Force proposal for a major human smuggling case. He stated, however, that this was done not to set Complainant up to fail, as Complainant alleged, but because the lead case agent was too busy writing reports and he believed this was a good opportunity to motivate Complainant with different and motivating work. GS1 stated that Complainant did a great job on the project. See ROI, Ex. 3.
GS1 stated that Complainant was unable to participate in the quarterly firearms qualifications and defensive tactics training because, pursuant to Agency policy, he was ineligible to do so due to the revocation of his authority to carry a firearm. See Agency's July 7, 2004 Firearms Policy. Specifically, Complainant was ineligible to carry a firearm and therefore he could not participate in trainings requiring the use of firearms. See ROI, Ex. F-3 at 5-6. The ASAC confirmed that Complainant was ineligible to participate in the quarterly firearms qualifications because he was unable to go to the firing range to qualify. See ROI, Ex. F-7 at 24-25. He also stated, however, that he was unaware that Complainant was not allowed to participate in defensive tactics training but states that Complainant never brought the matter to his attention.
GS1 stated that prior to Complainant joining his ASG group, he had a discussion with the ASAC who informed him that Complainant's work schedule was at GS1's discretion. GS1 further stated that after that conversation, he informed Complainant that his work schedule would span 8:30 a.m. to 6:30 p.m. daily. According to GS1, all the agents in Complainant's assigned group worked this schedule. See ROI, Ex, F-3 at 7-8.
Management articulated a legitimate, nondiscriminatory reason for reassigning Complainant's government-issued vehicle to another agent. The ASAC stated that he reassigned the vehicle which had previously been assigned to Complainant, since Complainant had been unable to use the vehicle for eight months and the needs of the service mandated that another agent be assigned the vehicle since that agent's vehicle was no longer serviceable. The ASAC explained that vehicle are assigned where needed and not based on seniority or for personal use.
GS2, who supervised Complainant until October 15, 2012, stated that he rated Complainant "unacceptable" in the following areas: Representing the Agency; Teamwork and Cooperation: Performance Goal 2: Accuracy and Timeliness of Reporting; Performance Goal; Performance Goal 3: Partnerships with Federal, State, and Local law enforcement and investigative agencies. GS2 explained that the reasons for the "unacceptable" rating included repeated complaints about Complainant's work performance, tardiness, not being available to assist other agents, not conducting substantive investigative work, hindering achievement of group goals, failure to submit an investigation report as mandated by Agency policy, and being removed from the multi-agency Financial Task Force. See ROI, Ex. F-5; see also Complainant's October 1, 2011 - November 30, 2012 Performance Plan and Evaluation, Id., at 26 - 37.
Upon review, the Commission finds that the reasons provided by the Agency as to why it engaged in the actions alleged to discriminatory are legitimate and nondiscriminatory. Next, we look to see whether Complainant has met his burden to prove that the Agency-provided reasons are pretexts for discrimination. To satisfy this burden, Complainant presented no evidence, other than his own belief, to demonstrate that his disability and prior EEO activity were factors in the Agency's decisions, whether intentional or not, to take the actions he alleged are discrimination. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant has failed to meet his burden to show that the Agency's stated reasons are pretexts designed to mask discriminatory animus against his named protected classes.
IV. DISABILITY-SPECIFIC ISSUES
Regarding the FFDEs requested by the Agency on August 13, 2012, and September 14, 2012, allegations 3 and 5, we note that under the Rehabilitation Act, employers may make disability-related inquires or require medical examinations of employees only if they are job-related and consistent with business necessity. 29 C.F.R. �� 1630.13(b), 1630.14(c).
Generally, a disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition." See Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (July 27, 2000) (Enforcement Guidance).
"Direct threat" means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation, 29 C.F.R. � 1630.2(r). It is the burden of the employer to show that its disability-related inquiries and requests for examination are job-related and consistent with business necessity. Enforcement Guidance, at 15-23.
Considering the evidence of Complainant's speech patterns, time and attendance records, medications taken, and that his job required him to carry a firearm, the Commission concludes the Agency's belief that Complainant's condition impaired his ability to perform essential functions and that he may have posed a direct threat because of that condition was job-related and consistent with business necessity, and therefore reasonable.
Complainant also alleged that the Agency violated the Rehabilitation Act when, on October 17, 2012, the ASAC disclosed to GS1 that Complainant was on anti-depressant medications,4 and when, on October 24, 2012, the FFDC requested additional medical information from his doctor. The Rehabilitation Act places certain limitations on an employer's ability to undertake disability-related inquiries or require medical examinations of employees.5 The inquiry may be undertaken or the examination required 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 her job or pose a direct threat because of a medical condition. EEOC Enforcement Guidance on Disability-Related Inquiries, Notice No. 915.002 (July 27, 2000), at Q.5.4 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 or her 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 Cerge v. U.S. Dep't of Homeland Security, EEOC Appeal No. 0120060363 (Oct. 9, 2007).
The Americans with Disabilities Act of 1990 (ADA) requires employers to treat as confidential all information obtained regarding the medical condition or history of an employee. 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14(b)(1). Such information includes any medical information voluntarily disclosed by an employee. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, General Principles section in Background discussion (July 27, 2000). Improper Agency disclosure of such medical information constitutes a per se violation of the Rehabilitation Act. Vale v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997).
Medical Disclosure
Considering that Complainant's position required that he carry a firearm and that his medical condition raised questions as to whether he could carry out the essential functions of his job or whether he posed a direct threat, we find that GS1 had a need to know that Complainant was taking anti-depressant medication. We therefore find that the ASAC's disclosure to GS1 did not violate the Rehabilitation Act.
Medical Inquiry
The Agency stated that it requested that Complainant's doctor provide a diagnostic cause, prognosis, and any planned treatment for the elevated ammonia levels detected in his blood during an FFDE. See ROI, Ex. F-16 at 1. In the request, the Agency noted that elevated ammonia levels can significantly impair a person's ability to perform law enforcement duties. Id.
Based on the testimonial and documentary evidence in the file, the Commission finds that the Agency had a reasonable belief that Complainant's ammonia levels reasonably raised concerns as to whether Complainant could perform the essential functions of his law enforcement position. We therefore find that the Agency's inquiry did not violate the Rehabilitation Act.
V. HARASSMENT
To the extent, Complainant believes that allegations 3, 4, 5, 6, 7, 8, 10, 12, 13, 14, and 15 created a hostile work environment, we note that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), this claim too must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of harassment is precluded by our determination that Complainant failed to establish that any of these actions as set forth above were motivated by discriminatory animus or otherwise violated EEOC statutes. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000).
With respect to allegations 9 and 11, we find that these matters are neither severe nor pervasive enough to establish a hostile work environment and are more in the nature of work-related interactions that do not rise to the level of harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant did not establish that he was: subjected to a hostile work environment, disparate treatment, or disability based discrimination. Accordingly, the Agency's final decision is AFFIRMED.
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.
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
_11/29/17_________________
Date
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 Though Complainant identified his entire claim as one of harassment, we will examine some of his allegations under a disparate treatment analysis as they are separate, discrete acts and/or considered as disability-specific issues.
3 Complainant included these allegations in his harassment claim.
4 To the extent that Complainant is claiming that the Agency violated the Privacy Act by disclosing his medical condition in the request for accommodation on his behalf, the Commission has no jurisdiction over such violations.
5 The Commission has articulated limited exceptions to the Rehabilitation Act's confidentiality requirements, and Agency officials may share confidential medical information about an employee with other Agency officials on a "need-to-know" basis, if doing so is necessary to ensure compliance with the Rehabilitation Act. See Skarica v. Dep't of Homeland Sec., EEOC Appeal No. 0120073399 (Mar. 5, 2010) (finding that the Agency did not violate the confidentiality provisions of the Rehabilitation Act when the complainant's supervisor consulted with a personnel official and the agency's physician to ascertain how to accommodate the complainant's medical condition, because these officials had a legitimate "need to know" the complainant's medical information).
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