Complainant, v Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jul 24, 2015

01-2012-1930-0500 (E.E.O.C. Jul. 24, 2015)

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

,
Complainant,

v

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120121930

Agency Nos. DON114760900189 & DON114142501142

DECISION
On March 26, 2012, Complainant filed an appeal from the Agency’s March 23, 2012 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. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND
Complainant worked as an Engineering Technician at the Air Weapons Station in China Lake,
California. On February 6, 2011, he filed an EEO complaint in which he alleged that
numerous Agency officials discriminated against him on the bases of disability and reprisal (the
instant EEO complaint) by refusing to allow him to become certified as an Arms, Ammunition,
and Explosives Hauler/Handler (AAEHH). The officials Complainant identified included a
Nurse Practitioner (NP), the Explosives Safety Officer (ESO), the Explosive Safety Operations
Manager (ESOM), the Laser Safety Officer (LSO), the Range Safety Officer (RSO), the
Medical Corps Officer-in-Charge (MCOIC), the Deputy Officer-in-Charge (DOIC), and a
Supervisory Human Resources Specialist (SHRS).

The Agency offered Complainant his job as Engineering Technician responsible for handling
and hauling of explosives by letter dated September 1, 2010. Following the offer,
Complainant was requested to undergo a routine pre-employment physical and complete the
medial examination form. Complainant responded that he did not have any medical disorder
that would prevent him from performing the full range of duties involving explosives that were
associated with his position and was not taking any medications. Investigative Report (IR)
182-83. During the course of the examination, however, the NP observed indications of
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muscle spasms and puncture wounds on Complainant’s back. On the basis of her observations,
the NP asked Complainant to provide his disability rating from the Department of Veterans
Affairs (VA). She also discovered that Complainant had five medication prescriptions recently
filled. After questioning Complainant further on the matter, the NP concluded that
Complainant had not been forthcoming with the medical information he was asked to provide
and that he had omitted information concerning his drug history. IR 589. Following a
consultation with her supervisor, the Head of Occupational Medicine (HOM), the NP indicated
on Complainant’s medical examination form that Complainant was not qualified for duty that
involved the handling or transporting of explosive ordinance. IR 114-16, 228-29, 238, 248-
53, 503, 589-92.

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
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b), in which it concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for those
decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Consequently, in order prevail on his claim of disparate treatment, Complainant
would have to prove, by a preponderance of the evidence, that at least one of the officials he
named in his complaint was motivated by unlawful considerations of his disabilities or EEO
activity in connection with the Agency’s failure to certify him as an Explosive Ordinance
Handler and Hauler. See Reeves v. Sanderson Plumbing Products, Inc.

, 530 U.S. 133, 143
(2000). Such evidence can take the form of discriminatory statements or past personal
treatment, comparative or statistical data showing significant discrepancies, unequal application
of Agency policy, deviations from standard procedures without explanation or justification, or
inadequately explained inconsistencies in the evidentiary record.
In support of his contention that all of the above-referenced officials had refused to certify him
as an AAEHH because of his disabilities and EEO activity, Complainant first argues that the
NP gave him a different examination than she gave to other employees, IR 574. The NP
maintained in her affidavit testimony that Complainant was given the same examination as
other employees, and her statement was confirmed by the LSO, the RSO, the MCOIC, and the
DOIC, as well as the response memorandum from the HOM. IR 238, 592, 614, 625, 634-35,
643.

Next, Complainant maintained that since October 2010, the management officials involved in
the decision to deny him AAHEE certification disclosed his medical information without
authorization. IR 577-78. However, the NP, the ESO, the LSO, the RSO, the MCOIC, and
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the DOIC all averred that they discussed Complainant’s medical situation at a meeting
convened for the purpose of determining whether or not the physical or medical requirements
for the AAEHH position should be waived in Complainant’s case. IR 595, 605-06, 617, 628,
637, 644.

Third, Complainant contends that on December 17, 2010, the management officials in question
refused to provide him with the medical records they used to deny his request for AAEHH
certification. IR 576-77. According to the NP, the MCOIC, and the DOIC, Complainant
submitted a request for his medical records on December 14, 2010, and the DOC obtained
copies of those records from the clinic and provided them to Complainant, as requested. IR
508-17, 594, 636, 645.

Fourth, Complainant argues that on May 19, 2011, management denied his request for a
waiver of the physical and medical requirements of the AAEHH position. IR 575-76. Such
waivers were granted in limited circumstances and only after a thorough analysis of all the
circumstances involved, particularly the potential risks to the Agency. IR 254-58, 296-97,
615. The RSO testified that neither he, the LSO, nor the NP had the authority to issue waivers
and that they were trying to determine who did. IR 626. When asked by the investigator why
Complainant was not given the waiver, the MCOIC replied that an appropriate determination
could not be made because of the inadequate and inconsistent history of medical conditions and
medications provided by Complainant. IR 635.

Finally, Complainant maintains that on June 14, 2011, the ESO rejected a memorandum
designating personnel to certify and verify explosive materials because his name was on it,
thereby further discrediting his reputation. IR 577-78. The ESO and the RSO responded that
because Complainant had not met the requirements of the AAEHH position, he was not
eligible to perform the operations outlined in the memorandum. IR 518-19, 606-07, 629.

Complainant does present the affidavit testimony of a fellow Engineering Technician, who
opined that Complainant had been discriminated against because of his disability. IR 660-61.
However, this individual’s testimony neither contradicts the explanations provided by the NP,
the ESO, the RSO, the MCOIC or any of the other officials involved in the matter nor calls
their veracity into question. It is Complainant’s burden to establish the existence of an
unlawful motivation on the part of the responding management officials by a preponderance of
the evidence, and more is required to meet that burden than merely expressing one’s belief.
We therefore find, as did the Agency that Complainant failed to satisfy his burden of proof as
to the existence of a discriminatory or retaliatory motive on the part of any official involved in
the decision not to certify Complainant as an AAEHH.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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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
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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

Date
July 24, 2015