Gilberto S.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

May 21, 2020

2019001589 (E.E.O.C. May. 21, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gilberto S.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019001589 Agency No. HS-TSA-02399-2017 DECISION On January 23, 2019, 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 December 11, 2018, final decision 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 decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected him to discrimination based on his protected bases and in reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Transportation Security Officer at the John F. Kennedy International Airport in Queens, New York. On October 17, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), disability (Post Traumatic Stress Disorder 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. 2019001589 2 (PTSD)), and reprisal for prior protected EEO activity when: on August 24, 20172, management denied Complainant’s reasonable accommodation request for a schedule adjustment. The investigative record3 reflects the following pertinent matters relating to the subject claims. On March 16, 2017, following an allegation that Complainant failed to properly supervise the overnight shift (8:00 pm to 4:30 am), Complainant was placed under investigation and moved to an early morning shift (5:00am to 1:30pm). Complainant asserted that taking him off the overnight shift caused a PTSD flare-up because of the difficulties it caused him with his schooling and being with his daughter. He said he had headaches and could not sleep. Shortly after he was moved to the morning shift, Complainant applied for Family Medical Leave Act (FMLA) and was approved. Complainant used his FMLA leave after he was switched to the morning shift so that he could attend his classes until the end of the semester and be with his daughter. He indicated he exhausted his FMLA leave in just a few months. On July 4, 2017, the Assistant Federal Security Director (AFSD) (race, disability status, and EEO activity unknown) issued Complainant a Notice of Suspension Decision (Notice) based on the March 16, 2017 incident. The Notice charged Complainant with Negligent Performance of Duty. Based on the charge, Complainant would be suspended, and following his return to duty on August 8, 2017, he would be working the morning shift. The shift change was made to promote efficiency in service and was based in Complainant’s negligence when he worked the overnight shift. On August 10, 2017, Complainant submitted a request for a schedule adjustment as a reasonable accommodation. He emailed his request to the Supervisory HR Specialist and to the Deputy Federal Security Director (DFSD) of Operations (female, has disability, prior EEO activity) On August 17, 2017, the Supervisory HR Specialist denied his request and stated that he could explore other options given to him previously, specifically moving to the evening shift (1:30pm to 10pm). By late August or early September, Complainant switched the evening shift. Complainant acknowledged that the evening shift “could work for [him]” but that he still preferred the overnight shift. Complainant explained he could not say for certain that his PTSD was a factor in management denying his request for a schedule adjustment as a reasonable accommodation, but that the Agency was aware he had PTSD, he made the reasonable accommodation request, and it was denied. He alleged his prior EEO activity was a factor in the denial because he felt management intentionally put him in a bad situation by moving him to the morning shift, knowing he had conflicts with schooling and seeing his daughter. 2 Record indicates that this date was August 17, 2017. 3 On April 11, 2018, the Agency provided Complainant a copy of the investigative file. On June 26, 2018, the Agency’s Office for Civil Rights and Civil Liberties (CRCL) remanded the case back to the Agency for a supplemental investigation. On August 8, 2018, the Supplemental Investigative File was sent to Complainant. 2019001589 3 He further alleged his race was a factor in this denial because the Federal Security Director (FSD) (Caucasian, no disability, no prior EEO activity) did not move two Caucasian supervisors who were involved in a breach on February 20, 2017, off their scheduled shifts or discipline them. In addition, Complainant saw this denial of his reasonable accommodation as a continuation of those events. The FSD stated that the DFSD had previously discussed with him Complainant’s reasonable accommodation request. He did not review the Reasonable Accommodation Request which Complainant had submitted but was aware that the reason Complainant gave for requesting a reasonable accommodation was that he suffered from PTSD. He directed the DFSD to accommodate Complainant’s request to the extent that it did not allow him to perform duties past 10:00 pm, due to operational security concerns connected with the March 2017 incident. The FSD testified he subsequently ordered a reorganization of the overnight shift as a result of the March 2017 incident, requiring that the overnight shift positions bid to a specific terminal to ensure better accountability and supervision. He added he also directed that Complainant remain on the morning shift for the remainder of the year, pending the new shift bid in January, due to the dereliction of duty which created a security lapse on the overnight shift. The FSD stated he hoped the reassignment to the morning shift would help Complainant develop into a better supervisor through the closer supervision. Management also noted that that there was no medical documentation demonstrating that Complainant required a return to the overnight shift as an accommodation for his PTSD. Complainant noted that during the investigation the annual shift bid was held, and he was awarded the overnight shift, which started on January 7, 2018. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. The Agency provided the Commission with the complaint record without specific comment. 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 (EEO MD- 110), 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 2019001589 4 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 Disparate Treatment Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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, n. 13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Disability & Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). The term qualified means “that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). Essential functions are the fundamental duties of a job, i.e., the outcomes that must be achieved by someone in that position. Id. at § 1630.2(n); Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). 2019001589 5 The function may be essential because the reason the position exists is to perform that function. 29 C.F.R. § 1630.2(n). Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p); Enforcement Guidance on Reasonable Accommodation; Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). Reasonable accommodation may include making facilities accessible, job restructuring, modifying work schedules, and other similar actions. Dennis v. Dep’t of Education, EEOC Appeal No. 0120090193 (June 15, 2010); Spence v. Nuclear Regulatory Comm’n, EEOC Appeal No. 0120041082 (Aug. 2, 2007), request for reconsideration denied, EEOC Request No. 0520070907 (July 9, 2008). A request for a modification or change at work because of a medical condition is a request for reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation at Q. 1. After receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. Part 1630, App. § 1630.9. Thus, “it may be necessary for the [agency] to initiate an Informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. Part 1630, App. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5. Analysis With respect to Complainant’s disparate treatment claims, assuming arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency did not deny Complainant’s request to move back to the overnight shift based on his race or his EEO activity, but because of the charge of negligence stemming from the March 2017 incident. The record demonstrated that in the interest of security management, the FSD directed Complainant to remain on the morning shift for the remainder of the year in hopes that Complainant’s abilities as a supervisor would improve. With respect to Complainant’s denial of reasonable accommodation claim,4 we find that, despite Complainant’s claim to the contrary, the Agency was involved in the interactive process. Specifically, Complainant requested the reasonable accommodation on August 10, 2017, and on August 17, 2017, he was informed that while he could not be assigned to the overnight shift, he could be reassigned to the evening shift. Complainant acknowledged that while the evening shift could work for him, he preferred returning to the evening shift. 4 For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2019001589 6 Despite his disapproval of the Agency’s offer, the Agency is not required to provide Complainant with the accommodation of his choice; it can select among different accommodations as long as its selection is effective. Kelley v. Social Sec. Admin., EEOC Appeal No. 0120080209 (May 18, 2010); 29 C.F.R. § 1630.2(o); Enforcement Guidance on Reasonable Accommodation, at 17. Complainant noted that he did not prefer the evening shift, but there is no evidence that the offered shift was ineffective. Moreover, there was no medical documentation demonstrating that Complainant required a return to the overnight shift as an accommodation for his PTSD. Based on the foregoing and having construed the evidence in a light most favorable to Complainant, we conclude that the preponderant evidence does not establish that the Agency acted with discriminatory animus regarding the subject claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2019001589 7 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 May 21, 2020 Date