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

Equal Employment Opportunity Commission

Nov 16, 2020

2020004272 (E.E.O.C. Nov. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Milford R.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020004272 Hearing No. 550-2018-00390 Agency No. HS-TSA-01438-2017 DECISION 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 7, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Federal Air Marshal in San Francisco, California. 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. 2020004272 2 On July 12, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him based on disability (caregiver for his father).2 By letter dated January 4, 2018, the Agency accepted the formal complaint for investigation and determined it was comprised of the following claim: Since October 2014, and ongoing, Complainant has been denied a hardship transfer and voluntary lateral transfer to care for his father with a disabling condition. After an 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s February 28, 2020, motion for a decision without a hearing and issued a decision without a hearing on April 2, 2020. The AJ found that Complainant is not entitled to a reasonable accommodation for having a disabled parent. Under a disparate treatment analysis, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to establish was pretext for discrimination. The AJ found that the Agency stated that Complainant’s request for a hardship transfer did not meet the Agency’s criteria set forth in its policy. Specifically, the AJ found that the Agency determined that Complainant’s father’s medical issues accompanied the aging process and did not rise to the level of a serious medical condition. Finally, the AJ found that the Agency stated that Complainant was not approved for a voluntary lateral transfer because he did not have enough seniority to be transferred. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. Complainant reiterates that the Agency should have allowed him to transfer to care of his father with various medical conditions. In response, the Agency requests we affirm its final order implementing the AJ’s decision without a hearing finding no discrimination. 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 2 The record reflects that Complainant initially also raised the basis of national origin in his formal complaint. However, he subsequently withdrew this basis. Report of Investigation (ROI) at 478. 2020004272 3 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”). 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 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. Upon review of the record, we find that the AJ properly issued a decision without a hearing because there is no genuine issue of material fact in dispute and, based on the evidence, Complainant has failed to establish discrimination as alleged. Denial of a Reasonable Accommodation Claim To the extent Complainant is alleging that he should have been provided with an accommodation (transfer to Las Vegas) to care for his father with various medication conditions, the Agency is not required to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability.3 Thus, Complainant is not entitled to a reasonable accommodation to care for his father under the Rehabilitation Act. See EEOC’s Questions and Answers about the Association Provision of the Americans with Disabilities Act at Question 4 (Oct. 17, 2005); Complainant v. Dep’t of Housing and Urban Develop., EEOC Appeal No. (0120122992) (Feb. 10, 2015). 3 In his affidavit, Complainant asserts that he himself does not have a disability. ROI at 78. 2020004272 4 Disparate Treatment Analysis 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 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See 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. See St. Mary’s Honor Center 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 the personnel action at issue, 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency articulated a legitimate nondiscriminatory reason for denying Complainant’s transfer requests. The record contains an affidavit from the Director, Business Management Office (D1). D1 asserts that he told Complainant that his hardship transfer requests were denied because the Hardship Review Committee found that Complainant’s requests did not meet the criteria of the Agency’s policy.4 Report of Investigation (ROI) at 112. The record contains a letter to Complainant dated March 29, 2017 from D1. ROI at 123. Therein, D1 informed Complainant that his request did not meet the Agency’s criteria for hardship requests. Id. Specifically, in the letter, D1 set forth that “[b]ased on the medical documentation submitted with your request, the Committee determined that your request does not meet the definition of a serious medical condition for which geographic transfer to the Las Vegas Field Office is deemed medically necessary because your father’s illness is consistent with that of an aging parent.” Id. The record contains a copy of the Agency’s Handbook for Hardship Transfer Requests. ROI at 369. 4 Complainant’s various hardship transfer requests were denied for failing to meet Agency criteria. ROI at 112. We note, however, that the Agency did approve for Complainant temporary hardship transfers on several occasions to care for his father in 2015 and 2016. ROI at 101-102, 299, 339. 2020004272 5 The handbook provides in pertinent part, that “[f]or purposes of consideration for a permanent hardship transfer, either the employee or the immediate family member of the employee must have a current serious medical condition for which geographic transfer is deemed medically necessary. Generally speaking, attending to the infirmities that accompany the aging process is a common experience to all employees with aging parents and in-laws and do not, in and of themselves, rise to the level of a serious medical condition.” Id. Complainant did not establish the Agency’s reasons for denying his hardship transfer requests were pretext for discrimination. While Complainant may have disagreed with the determination of the Hardship Review Committee, this is insufficient to establish pretext. We further concur with the AJ that the alleged comment from Complainant’s third-level supervisor that air marshals needed to choose a career or family was not made in the context of Complainant’s transfer requests and the record reflects that this supervisor supported Complainant’s various transfer requests. AJ Decision at 8, ROI at 266, 269-270, 282-283, 325-326. Regarding the denial of Complainant’s request for a Voluntary Lateral Transfer (VLT), we find that the Agency articulated, legitimate, nondiscriminatory reasons for its actions. The record contains an affidavit from the Agency official in charge of the VLT program. ROI at 237. Therein, the Agency official asserts that while there were openings at the time in Las Vegas for the VLT program, Complainant was not eligible to leave San Francisco. The San Francisco reached its maximum number of VLT exits. The Agency official asserts that the San Francisco office was designated as “hard to staff.” Therefore, the Field Operations Division Director has the authority to limit the exits from the office. Complainant did not have enough seniority compared to his peers who transferred from the San Francisco office. ROI at 237-240. Complainant failed to establish that the Agency’s articulated reason for denying Complainant a transfer under the VLT program was pretext for discrimination. CONCLUSION Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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. 2020004272 6 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020004272 7 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 November 16, 2020 Date