[Redacted], Ethan C., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 15, 2023

Appeal No. 2023000638 (E.E.O.C. Mar. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ethan C.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2023000638 Hearing No. 420-2022-00075X Agency No. 8V0J2100536 DECISION On November 2, 2022, 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 October 5, 2022, final order 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; and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the relevant time, Complainant worked as a Computer Science Training Instructor at the Agency’s Stennis Building at Kennis Air Force Base in Biloxi, Mississippi. On June 24, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (deafness) and genetic information (22 chromosome abnormality) when: 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. 2023000638 2 1. On June 23, 2021, he received a Termination of Employment during Probationary Period Letter from his Training Instructor (Computer Science, GS-1712-9) position; 2. He asked Manager, from October 2020 to present, for an Interpreter for all meetings, classroom activities, and events; and 3. Keesler AFB Civilian Personnel did not provide an interpreter for his Civilian In- processing Orientation to the base. The record indicated that Complainant was hired and on-boarded with the Agency in October 2020, for a two-year probationary period. ROI at 66. As an instructor, Complaint must provide in-class instruction and demonstration of computer networking systems to officers. ROI at 303. New instructors like Complainant have a common training program and must complete three phases of training before being certified as an instructor. The first phase for the new instructor is to take the course they are going to teach along with the examination. ROI at 266. The minimum passing score that instructors must obtain is 90%. Id. Complainant was assigned to teach the Network Fundamentals Course. ROI at 73. Therefore, Complainant was enrolled in the course and needed to obtain a minimum score of 90% in order to be certified to teach that course. Complainant requested a reasonable accommodation because he is deaf. ROI at 265, 282. Complainant took the course four times and failed to pass the examination each time. During the first two attempts at the course, he was provided a videophone with an interpreter and utilization of course slides. ROI at 66, 111, 264, 311. In his second attempt, the Captain provided additional instruction. ROI at 263. For the third attempt, Complainant was provided a live American Sign Language (ASL) interpreter during both the course instruction and the examination. ROI at 142, 289. For the fourth attempt, Complainant was given both use of a live ASL interpreter and one-on-one assistance and consultation from the Captain. ROI at 111, 145. Complainant failed to obtain the required minimum passing score after each course instruction and examination attempt. ROI at 66, 264. Subsequently, on June 23, 2021, Complainant was issued a letter terminating him during his probationary period due to his inability to obtain the minimum passing score on the Subject Matter Testing, which rendered him unable to “demonstrate…qualifications for continued employment.” ROI at 66, 217. 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). Complainant timely requested a hearing. On July 8, 2022, the Agency submitted a Motion for a Decision Without a Hearing (Motion). In their Motion, the Agency argued that the Complainant’s reasonable accommodation claims failed because Complainant was not a qualified individual with a disability. 2023000638 3 Specifically, the Agency asserted that, despite being provided reasonable accommodations and given four attempts to pass the examination, Complainant failed to obtain the required minimum score for the first phase of his certification as an instructor. As Complainant could not obtain the minimum score, the Agency argued that he was not a qualified individual with a disability. As to claim 1, the Agency argued that Complainant did not provide evidence that its legitimate, nondiscriminatory reason for his removal was pretext to discrimination. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion and issued a decision without a hearing on August 26, 2022. The AJ fully adopted the Agency’s Motion for Summary Judgment. 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. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency failed to provide him a reasonable accommodation when it did not provide him an interpreter throughout the entirety of his employment and that providing an ASL interpreter did not constitute an undue hardship on the Agency. Complainant further asserts that the AJ erroneously adopted the Agency’s Motion for Summary Judgment. Specifically, Complainant took issue with the Motion’s references to an Attachment 24, however, the Agency failed to include Attachment 24 to the Motion. Complainant argues that he was unable to rebut the information and as such, the matter should be remanded. In response, the Agency contends that the AJ’s summary judgment should be upheld. ANALYSIS AND FINDINGS Standard of Review The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 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 de novo). 2023000638 4 In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. To the extent that Complainant argues that the case should be remanded because the Agency failed to include Attachment 24 to its Motion, the Commission disagrees. We recognize that the Agency’s Motion referenced Attachment 24. However, after review of the Agency’s Motion and the record as a whole, we find that all relevant and material facts purportedly included in Attachment 24 were also found in the ROI. As such, we find that Complainant had the relevant information available within the ROI and was not prejudiced by the Agency’s omission of Attachment 24 to its Motion. Reasonable Accommodation-Claims 2 and 3 An agency must make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A qualified individual with a disability is an “individual with a disability” who 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). As outlined in specific detail above, the record showed that Complainant was unable to obtain the minimum score required on the subject test for his position, even when he was provided with ASL interpreters as reasonable accommodation. To the extent Complainant argues that he should have been provided a live interpreter throughout the entirety of his employment, this does not alter the Commission’s analysis. We note that Complainant was provided with four presentations of the materials. Furthermore, during the third and fourth iterations of the course and examination, Complainant was provided with the ASL interpreter and additional assistance from the Captain and still could not obtain the required minimum score to pass the first phase of obtaining his certification for his position. Because Complainant has not demonstrated that he could perform the essential functions of the position for which he was hired with reasonable accommodations, we find that he has not established that he is a qualified individual with a disability. Therefore, we conclude that Complainant has not shown that the Agency violated the Rehabilitation Act with respect to claims 2 and 3. 2023000638 5 Disparate Treatment-Claim 1 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, she 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). In this case, assuming arguendo that Complainant established a prima facie case of discrimination, we find that Agency management articulated legitimate, non-discriminatory reasons for its actions. More specifically, the Agency terminated Complainant because he failed to meet the qualifications for his position during his probationary period. The Commission finds no evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. Aside from conclusory statements and his subjective belief, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its action was pretext for discrimination. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged in claim 1. 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 final order implementing the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. 2023000638 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, a 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. 2023000638 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 March 15, 2023 Date