Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 16, 2014
0120102910 (E.E.O.C. Apr. 16, 2014)

0120102910

04-16-2014

Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.


Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120102910

Hearing No. 440-2009-00144X

Agency No. ARASC08JUL02644

DECISION

On July 14, 2010, Complainant filed an appeal from the Agency's June 9, 2010, 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.; 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.

ISSUE PRESENTED

Whether the EEOC Administrative Judge's (AJ) determination that Complainant failed to establish that he was harassed and discriminated against is supported by substantial evidence in the record.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a worked as a GS-7 Administrative Assistant in Mosul, Iraq. On August 14, 2008, Complainant filed an EEO complaint alleging that the Agency harassed and discriminated against him on the bases of his age (59), race (Black), disability (perceived physical disability and mental instability), and in reprisal for prior protected EEO activity when:

1. Complainant was nicknamed "Lightning," and his supervisor stated that older people tend to slow down the workplace because they cannot think as fast as young workers;

2. On or before June 1,2008, Complainant's supervisor directed co-workers to follow him and restrict his ability to seek help and to complain to the Chaplain and others;

3. On or before June 1, 2008, Complainant's supervisor instructed co-workers to confiscate the key to Complainant's living quarters; and

4. On or about June 7, 2008, Complainant's supervisor orchestrated Complainant's return to the United States from Iraq.

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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on April 1, 2010, and issued a decision on May 14, 2010.

The AJ found the following facts:

From March to June 7, 2008, Complainant worked in Mosul, Iraq. A Heavy Mobile Equipment Mechanic Supervisor was Complainant's first-level supervisor (S1). Complainant has no prior EEO activity. Complainant did not allege that he had an actual disability; rather Complainant alleged that the Agency perceived him to have a physical or mental impairment.

Claims 1, 2, and 3.

Complainant was in-processed in Mosul, Iraq by a co-worker, Material handler, WG-06 (CW1). He was assigned to work in an air-conditioned office with CW1 and other employees. CW1 was assigned to train Complainant. During this training, according to Complainant, a mix-up occurred between his and CW1's passwords. Thereafter, Complainant had difficulty logging into the computer. Complainant also alleged that all the reports that existed on the computer were erased.

Complainant believed that the work environment was hostile and that S1 preferred to have CW1 in Complainant's position. Complainant also asserts that CW1 was in a romantic relationship with his roommate, CW2. Complainant spoke to S1 about how CW1 was often in his room with CW2. After that, Complainant said that S1 became chilly toward him and said that he did not like "snitches."

Complainant testified that the employees in Mosul started calling him "Lightning." He said that initially he did not pay any attention to it. Complainant stated that it was not the term itself that bothered him but the sarcasm with which it was said. Complainant believed that the term described his grey hair and his slowness on the keyboard. Complainant also testified that he believed that the term had racist and "ageist" connotations because the term was used in the old television show "Amos and Andy" for the black clown. He said that he was called "Lightning" daily by S1, CW1, CW2 as well as other coworkers. Complainant requested that CW2 and another coworker not call him by that name.

The AJ found that Complainant admitted that he had never worked with spreadsheets before and took a lot of time to do the work. According to Complainant, S1 told him that older people were slow and did not think as fast. He also claims that S1 told him that he could not go to chow or to the chaplain. Complainant also said that another coworker (CW3) was ordered by S1 to follow him around.

Claim 4

Complainant testified that he visited the medical clinic four times while in Mosul. Complainant went to the clinic for a cold on March 29, 2008; for migraines on May 22 and 24, 2008; and for dizziness on May 31, 2008. Complainant admits that he took the medication Nubain to Iraq for treatment of his migraine headaches. He testified that Nubain, which he injects, is a synthetic and not a narcotic. He acknowledged that the Agency told him that he could not use Nubain in Iraq, but argued that individuals at Fort Benning approved the drug.

The AJ noted that the Nurse Practitioner (NP) testified she had never prescribed Nubain for headaches because it is an analgesic and narcotic. She also testified that the drug has a dissociative effect and believed that it was an inappropriate medication to prescribe. The NP testified that Nubain caused confusion and sedation and she did not believe that it was appropriate for someone in a war zone. As such, she told the Complainant that his primary care doctor would have to prescribe the medication. She denied prescribing narcotics to any patients in Mosul.

The NP believed that there were two medical issues for Complainant. First, Complainant's migraines were severe and she was not able to "break" them. Second, Complainant appeared to have mental health issues. On his last visit to the clinic on May 31, 2008, the NP testified that Complainant was confused and could not make it through the mental health examination. She noted that Complainant had not eaten and was drinking highly caffeinated "Rip-It." The NP testified that she realized that Complainant's situation was much more serious due to his confusion and incoherence and that he needed a neuropsychological examination. She was concerned that Complainant could have a brain tumor due to the symptoms. The NP spoke to Complainant's supervisor and told him that Complainant needed to return to the states for examination. She testified that it was likely that she gave instructions to S1 to keep an eye on Complainant. The NP wrote a Memo of Record stating that Complainant needed to be repatriated with an escort.

The NP testified that she did not think that Complainant had a psychological issue; rather she thought he had a neurological issue. She said that it was "always impossible" to have a coherent conversation with Complainant when he came to the clinic and she could never get to the point of Complainant's issues.

The AJ found that Complainant was repatriated and underwent several medical tests. He claimed that he passed the medical evaluations and provided the information to the Red River Army Depot. Complainant denied the Agency's contention that he was not returned to Iraq because he failed to provide appropriate medical documentation. Complainant contended that he was never informed of the tests that were required, even though he asked on several occasions. The Complainant's final date of work at Red River Army Depot was October 29, 2008.

The Physician Assistant (PA) testified that a large part of his duties included medically approving employees for deployment for Iraq. The PA spoke to Complainant specifically about whether he could be deployed if he was using Nubain to control his migraines before he deployed the first time. The PA said that he told Complainant that because Nubain was a narcotic, it was unacceptable for use on an overseas deployment. The PA told Complainant that he needed to speak with his private physician regarding an alternative since Nubain caused a dulling of the senses that was not appropriate for a combat situation.

The PA testified that when Complainant returned from Iraq in June 2008, he would not have been able to re-deploy overseas while using Nubain. The PA sent a memorandum dated August 14, 2008 to the Travel Division Chief, Complainant's third-line supervisor, stating that Complainant was still not deployable. He does not recall seeing any documentation from Complainant's private physician. The PA testified that he would have required a full psychological evaluation and notes from a psychologist regarding Complainant's current condition. The PA testified that Complainant spoke with one of the nurses in his clinic and provided her some medical documentation. Later, Complainant reported to the clinic for a Fitness for Duty Examination on July 17, 2008 but it was not conducted because Complainant did not bring proper documentation. The PA stated that he did not provide Complainant with any information as to what documentation was required.

The AJ found that Complainant failed to establish a prima facie case of disparate treatment based on his race, disability, age, or retaliation. Specifically, the AJ found that Complainant failed to show that the Agency's actions were based on his protected bases of race, perceived disability, or any prior EEO activity. Further, the AJ found that Complainant failed to show that individuals outside of his protected age group were treated differently. The AJ found that Complainant did not allege any race based comments took place. He also did not establish that any management official had knowledge that he had prior protected EEO activity or that he had engaged in EEO protected activity prior to the instant case.

The AJ also found that Complainant failed to establish that any management official perceived him as being disabled. Rather, the AJ found that Complainant had various medical issues and a medical professional recommended that he return to the states for evaluation and his supervisor followed this advice. Further, the AJ found that Complainant failed to demonstrate that the Agency's proffered reasons for its actions were a pretext for discrimination for repatriating Complainant. Specifically, the AJ found that Complainant was not able to dispute the Agency's contention that if he had been truthful, he never would have been deployed to Iraq. The AJ also noted that during the hearing, Complainant seemed confused at time while testifying. The AJ concluded that this confirmed the testimony of The NP's testimony that Complainant was confused during his clinic visits.

Further, the AJ found that Complainant failed to establish that he was subjected to harassment based on his race, disability, or retaliation because the incidents were not sufficiently related to his race, perceived disability or prior EEO activity. Additionally, the AJ found that the incidents were not sufficiently severe or pervasive enough to have rendered his work environment hostile.

With respect to Complainant's claim of age discrimination, the AJ found that Complainant established he was called "Lightning" even after he asked that others not do so. The AJ determined that this comment could "certainly seem to be related to Complainant's age," and the AJ found that it was pervasive since it occurred on a daily basis. The AJ, however, found that although the "Lightning" comment could have referred to Complainant's age, the AJ credited the numerous individuals who provided testimony that it only referred to the Complainant's lack of progress with regard to his computer skills. The AJ noted that Complainant testified that he last worked for the federal government in 1987 and during that time his assistant performed the computer work while he worked with the paper files. The AJ found the testimony of the witnesses regarding Complainant's problems performing computer related functions to be credible. The AJ also found that Complainant also appeared to admit his lack of computer skills and stated that he was never in a "big hurry" when working but got the job done. The AJ also determined that Complainant also seemed to participate at times in the "Lightning" comments since he admitted that he did not mind when certain employees called him this name but was upset when others did so.

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

CONTENTIONS ON APPEAL

Complainant argues that the AJ erred in finding that he was not harassed or discriminated against with regard to his race, age, and in reprisal for prior EEO activity. Further, Complainant argues that the AJ erred in finding that he was not perceived as disabled when he was repatriated. Complainant requests that the Commission find that the Agency discriminated and harassed him.

In response, the Agency requests that the Commission affirm the AJ's finding of no discrimination or harassment. Specifically, the Agency argues that Complainant failed to establish that he was discriminated or harassed as alleged, his witnesses lack credibility, and that his return to the United States was supported by medical documentation and that Complainant would not have been deployed if he had been truthful to the Agency regarding the medication he was taking.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).

With regard to Complainant's allegations of race, age, reprisal, and disability claims 1, 2, and 3, we find that the AJ's finding of no discrimination is supported by substantial evidence in the record. Specifically, Complainant has failed to put forth sufficient evidence to establish that these incidents occurred due to his protected classes. The record clearly shows that the incidents occurred as Complainant alleged - he was called "Lightning" by his co-workers; S1 had taken away his room key; and S1 asked a co-worker to follow Complainant. We find, however, that Complainant failed to demonstrate that these incidents occurred due to his protected classes. With regard to claim 1, the AJ found that although "Lightning" could be seen as a pejorative referring to Complainant's age, Complainant himself stated that his computer skills were not up to speed and there were several witnesses that testified that this was the cause of the nickname. As such, we find that Complainant failed to successfully establish that this nickname was due to his age.

With regard to claims 2 and 3, the record shows that Complainant was restricted by S1 from returning to his room by taking Complainant's room key and by instructing a co-worker to follow Complainant. S1, however, did not provide any testimony during the hearing. However, the record reveals that S1 instructed CW3 to follow Complainant after NP recommended that Complainant be released back to the United States. CW3 testified that he was instructed to do so because they were in a dangerous area. With regard to the key, the record reveals that Complainant's key was taken from him when he was "out-processed" and returning to the United States. However, because his flight was delayed, the Agency returned the key to Complainant. We find that these reasons are not based on Complainant's protected classes. As such, Complainant failed to establish that the Agency's actions were motivated by discriminatory animus.

With regard to Complainant's harassment claim concerning claims 1, 2, and 3, a finding of a hostile work environment is precluded by our determination above that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U. S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).

With regard to claim 4, we find that the AJ erred as a matter of law. We find that this claim should have been addressed as an allegation of disability discrimination when the Agency removed him from Iraq due to concern of his own safety for further medical evaluation. The record is replete with statements that NP recommended that Complainant return to American for further evaluation, because she was concerned he might have a brain tumor, and that the war zone was not a safe place for Complainant. As such, we find that the Agency perceived that Complainant was a direct threat to himself.

Under the Rehabilitation Act, medical examinations and disability-related inquiries of employees must be job-related and consistent with business necessity. 42 U.S.C. � 12112(d)(4)(A); 29 C.F.R. � 1630.14(c). An examination or inquiry is job-related and consistent with business necessity when the employer has a reasonable belief, based on objective evidence, that the employee's ability to perform essential functions will be impaired by a medical condition or that the employee will pose a direct threat to themselves or others because of a medical condition. EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), EEOC Notice 915.002 (July 27, 2000) (Enforcement Guidance on Employee Inquiries and Examinations). "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).

Here, the record shows that the Agency had a reasonable belief that Complainant posed a direct threat to himself if he remained in Iraq. Specifically, the record reveals that Complainant was unable to obtain more medication for his migraines, which persisted. Further, Complainant was observed confused, incoherent, and not able to clearly communicate when he did seek medical attention for his migraines. The record shows that Complainant was returned to America to seek treatment from his physician since the NP testified that her clinic did not handle chronic ailments. The NP testified that it was presumed that chronic conditions would be under control prior to deployment. Further, the AJ found that the testimony that Complainant was observed confused or lost to be credible. Although Complainant offered some testimony that this was not the case, we find that the evidence provided to support the Agency's position was substantial because numerous witnesses provided testimony that Complainant was observed as confused or lost.

With regard to Complainants assertions that he provided medical documentation that should have resulted in his reinstatement to Iraq, we find that the medical documentation was not sufficient. The documentation he provided consisted of only two letters that contained a short paragraph from his physicians stating that Complainant was not suffering from neurological or psychological issues. The PA provided testimony that he would have required a full psychological evaluation and notes from a psychologist regarding Complainant's current condition. This clearly was not provided.

As such, we find that the AJ's ultimate finding that Complainant failed to establish that he was discriminated against and harassed is supported by substantial evidence in the record.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's adoption of the AJ's decision finding that Complainant failed to establish that he was subjected to unlawful discrimination or harassment.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

__4/16/14________________

Date

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0120102910

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120102910