[Redacted], Jermaine H., 1 Petitioner,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 6, 2023

Petition No. 2022005138 (E.E.O.C. Mar. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jermaine H.,1 Petitioner, v. Christine Wormuth, Secretary, Department of the Army, Agency. Petition No. 2022005138 MSPB No. DA-0432-22-0221-I-1 DECISION On September 17, 2022, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a final order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of 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. For the following reasons, we CONCUR with the MSPB. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Contract Specialist, GS-1102-12, at the U.S. Army Corps of Engineers (USACE), Tulsa District, Contracting Division in Tulsa, Oklahoma. He was directly supervised by the Services and Supply Branch Chief (Branch Chief), who, in turn, was supervised by the District Contracting Chief (District Chief). 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2022005138 2 In late 2019, the Branch Chief placed Petitioner on a Performance Improvement Plan (PIP) due to his failure to demonstrate acceptable performance. Shortly after being placed on the PIP, Petitioner notified the Branch Chief that he had bilateral vision problems due to pronounced epimacular retinal membranes and needed surgery. The Branch Chief responded to the news by rescinding the PIP to allow Petitioner to focus on his health. Petitioner was initially scheduled to undergo surgery on his left eye in early 2020. Prior to his surgery, Petitioner emailed the Supervisory Human Resources (HR) Specialist in February 2020 for advice. In his email, Petitioner stated that while he had hundreds of hours of leave available to use, he wanted to know what options were available to him that would allow him to keep working as much as possible. The Supervisory HR Specialist responded by advising Petitioner that he had the option of taking leave during periods of incapacitation; however, the Supervisory HR Specialist emphasized to Petitioner that he should discuss the matter with his medical providers and supervisor to determine what he needed. Petitioner indicated that he would comply with the Supervisory HR Specialist’s recommendation and would coordinate his leave requests with his medical provider and supervisor. Due to the COVID-19 pandemic, Petitioner ultimately did not undergo surgery until May 2020. He underwent additional surgeries in June and October 2020, to treat his right eye. The Branch Chief granted all of Petitioner’s requests for leave to recover from surgery. Furthermore, when Petitioner complained in April 2020 that the Agency’s telework work directive caused him significant vision issues, the Branch Chief informed Petitioner that the office was not closed, and that Petitioner could come into the office to work. Following his surgeries, Petitioner struggled to adapt to differences in visual acuity between his left eye and right eye, which made it difficult for him to use a computer for extended periods. In October 2020, Petitioner allegedly met with the Branch Chief and verbally requested reasonable accommodation. He allegedly sought a reduced schedule, periodic breaks, and an adjustment to his workload. According to Petitioner, the Branch Chief not only failed to reasonably accommodate him, but also discriminated against him by placing him on a 30-day PIP beginning November 3, 2020. Petitioner recalled that the Branch Chief specifically told him that she expected no less than 100% from him. Though the 30-day PIP period was scheduled to end in early December 2020, the Branch Chief extended the period by another month to allow Petitioner additional time to improve. On January 5, 2021, the Branch Chief formally notified Petitioner that he failed the PIP due to his failure to complete the work that had been assigned to him during the PIP period. After consulting with the Supervisory HR Specialist, the Branch Chief issued Petitioner a Notice of Proposed Removal on February 4, 2021, for unacceptable performance. On April 8, 2021, the District Chief rendered a decision on the proposal and notified Petitioner of his decision to remove Petitioner from federal service, effective April 9, 2021. 2022005138 3 Petitioner claimed that on the effective date of his removal, he received a job offer with the Defense Contract Audit Agency (DCAA); however, that offer was rescinded a week later after the Agency informed DCAA that Petitioner had been removed on April 7, 2021, two full days prior to his actual removal. Petitioner alleged that the Agency intentionally backdated his SF-50 to harm him. Petitioner subsequently filed a mixed case complaint. Following two amendments to his complaint, the Agency accepted for investigation the following claims of discrimination based on disability (vision impairment), age (over 40), and in reprisal for prior protected EEO activity (requesting a reasonable accommodation) when: 1. On November 3, 2020, [the Branch Chief] placed him on a PIP stating, “I expect no less than 100%” after Petitioner requested a reasonable accommodation in October 2020, following numerous eye surgeries and hospital admissions. 2. On February 5, 2021, he received a Notice of Proposed Removal from Chief. 3. On April 9, 2021, a Standard Form (SF) 50 was generated by USACE-SWF Civilian Personnel Advisory Center (CPAC), indicating Petitioner’s effective date of removal from federal service as of April 7, 2021.2 At the conclusion of the investigation, the Agency provided Petitioner with a copy of the report of investigation (ROI) and ultimately issued a final decision on February 23, 2022, which concluded that Petitioner failed to prove his allegations of discrimination. The Agency concluded that Petitioner could not prevail on the merits of his complaint. In issuing the decision, the Agency provided Petitioner with appeal rights to the MSPB. Petitioner filed an appeal with the MSBP. The MSPB Administrative Judge (AJ) held a two-day hearing on June 15 and 16, 2022. Over the course of the hearing, several individuals testified, including Petitioner, the Branch Chief, the District Chief, Supervisory HR Specialist, and the EEO Manager. Petitioner testified that the Agency not only failed to reasonably accommodate him but also discriminated against him on the bases of disability, age, and reprisal. He also testified that it was “just understood” in the office that he was the “old guy.” The Branch Chief, however, contradicted Petitioner’s testimony. While she acknowledged that she did not receive any supervisor specific EEO training, she testified that she granted all of Petitioner’s leave requests and repeatedly asked Petitioner if he wanted any other accommodations. However, Petitioner repeatedly declined her offers to accommodate him, as his vision was recovering well. The Branch Chief emphasized that Petitioner never requested a reduced schedule, periodic breaks, and an adjustment to his workload. 2 In his formal complaint, Petitioner claimed that his SF-50 indicated that he had been removed from federal service as of April 9, 2021. However, he clarified during the EEO investigation that his SF-50 originally indicated that he had been removed from federal service, effective April 7, 2021. We have revised claim 3 to reflect Petitioner’s clarification. 2022005138 4 Furthermore, the Branch Chief emphatically denied telling Petitioner that he needed to perform no less than 100% or making any other discriminatory remark. The District Chief corroborated the Branch Chief’s testimony and testified that Petitioner did not discuss any concerns relating to reasonable accommodation with him. The Supervisory HR Specialist acknowledged in his testimony that Petitioner emailed him in February 2020 to inquire in view of his upcoming surgeries what options were available to him that would allow him to keep working as much as possible. The Supervisory HR Specialist testified that he referred Petitioner to his chain of command, and with Petitioner’s permission, discussed Petitioner’s email with the Branch Chief. The Supervisory HR Specialist testified that he recalled telling the Branch Chief to consider whether Petitioner needed reasonable accommodation and noted that the Agency had a Disability Program Office in Texas that coordinated requests for reasonable accommodation. The EEO Manager who supervised the Disability Program Office, however, testified that no one contacted her regarding any matter relating to Petitioner. As for Petitioner’s removal and SF-50, all of the responsible management officials attributed Petitioner’s removal to his poor performance. They also denied that they backdated Petitioner’s SF-50. On July 14, 2022, the assigned MSPB AJ issued an initial decision on the merits of the appeal. In the decision, with regard to Petitioner’s denial of reasonable accommodation defense, the MSPB AJ determined that Petitioner failed to show by “preponderant evidence he informed the [A]gency he needed accommodation for his vision impairment.” In reaching this conclusion, the MSPB acknowledged that the parties disputed whether Petitioner requested accommodation; however, the MSPB AJ found the Branch Chief’s testimony to be more credible than Petitioner’s testimony. Given the evidence of record, the MSPB AJ concluded that Petitioner “failed to prove his affirmative defense of disability discrimination based on a failure to accommodate.” In finding no discrimination based on disability, age, or reprisal, the MSPB AJ relied upon the MSPB’s decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB’s authority to adjudicate and remedy alleged violations of 42 U.S.C. § 2000e-16 is a matter of civil service law. Id. The MSPB AJ ultimately found no evidence that the Agency’s actions were based on discriminatory motive. To the contrary, the MSPB AJ found that the Agency had legitimate, nondiscriminatory reasons for placing Petitioner on a PIP based on his unacceptable performance. While the MSPB AJ considered Petitioner’s contention that evidence of discrimination could be inferred by the Branch Chief’s statement that he needed to perform at no less than 100%, the MSPB AJ noted that the Branch Chief vehemently denied making any discriminatory remarks. Furthermore, the MSPB AJ found Petitioner’s testimony on his disparate treatment claims to be less than credible given his tendency to make speculative remarks. 2022005138 5 As Petitioner failed to prevail on his affirmative defenses, the MSPB AJ found no basis to disturb the Agency’s removal action. The MSPB’s initial decision became final on August 18, 2022. Petitioner filed the instant petition on September 17, 2022. ARGUMENTS IN PETITION Through his attorney, Petitioner argues that the MSPB AJ improperly rejected his affirmative defenses. He initially disputes the MSPB AJ’s determination that he did not inform anyone at the Agency that he needed accommodation. To the contrary, Petitioner argues that the record clearly shows that he informed the Supervisory HR Specialist in early February 2020, that he had upcoming surgeries and wanted to know what options were available to him that would allow him to keep working as much as possible. Petitioner maintains that the Supervisory HR Specialist simply deferred to the Branch Chief. Petitioner asserts that he subsequently “made verbal requests for reasonable accommodation” to the Branch Chief and advised her that he needed periodic breaks and a reduced schedule because his “eyes tired easily, particularly when using the computer.” He states that the Branch Chief not only failed to accommodate him, but also told him that he needed to be 100 % every day. As no one told him about the Agency’s Disability Program Office in Texas, Petitioner maintains that had no one else to turn to and “was largely left to communicate with [the Branch Chief] regarding his needs, and she was very hostile and dismissive to him.” He attributes the Branch Chief’s failure to advise him about the existence of the Disability Program Office to the Agency’s failure to provide her with supervisor specific EEO training. Petitioner also disputes the MSPB AJ’s characterization of his performance and maintains that he had a long history of satisfactory performance prior to his vision impairment. While Petitioner acknowledges that his performance slowed down in 2020, he attributes the slowdown, in part, to his vision impairment, which required him to double check his work to ensure accuracy. Petitioner also attributes the slowdown to the COVID-19 pandemic, which prevented him from going into the office to view “large documents and information files.” Petitioner maintains that he did not regularly miss deadlines and asserts that the AJ, in finding that he missed deadlines, ignored key evidence showing that: 1) his Team Lead, who was responsible for signing off on options, was unavailable for several weeks; and 2) management routinely extended work deadlines. Finally, Petitioner alleges that the Agency discriminated against him when it issued him a SF-50 that falsely indicated that he had been removed from federal service on April 7, 2019. He claims that the Agency’s action resulted in the job offer from the DCAA being rescinded. The Agency, however, opposes the petition on procedural grounds. In its opposition, the Agency argues that dismissal of the petition is warranted because Petitioner “failed to serve upon all individuals and parties of the MSPB’s service list by certified mail and failed to certify as to the date and method of service” as required by 29 C.F.R § 1614.303(d). 2022005138 6 The Agency claims that Petitioner’s oversight unduly prejudiced the Agency and prevented the Agency from filing a timely opposition brief. In the alternative, the Agency requests that we extend the period for filing an opposition brief. STANDARD OF REVIEW EEOC regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. § 1614.305(c). ANALYSIS AND FINDINGS Preliminary Matters We first address the Agency’s request to reject the petition for failure to comply with 29 C.F.R § 1614.303(d). While we certainly understand the Agency’s concerns, we ultimately do not find Petitioner’s noncompliance to be prejudicial to the Agency given that our decision is fully in the Agency’s favor. See McCullough v. U.S. Postal Serv., EEOC Petition No. 03A10024 (Feb. 14, 2001) (denying agency’s motion to reject petition for failure to comply with 29 C.F.R § 1614.303(d), as agency failed to demonstrate prejudice). Nevertheless, we take this opportunity to remind Petitioner that the Commission’s regulations require petitions for review to be served upon on all individuals and parties on the MSPB’s service list by certified mail on or before filing with the Commission, and the Clerk of the MSPB. McCullough, supra, citing 29 C.F.R § 1614.303(d). Given our decision herein, we deny the Agency’s motion to extend the period for filing an opposition brief. Claim 1 - Denial of Reasonable Accommodation Under the Commission’s regulations, an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). Even if we assume arguendo that Petitioner was a qualified individual with a disability during the relevant period, we find no persuasive evidence of discrimination. While we recognize that the record clearly shows Petitioner contacted the Supervisory HR Specialist in February 2020 to discuss his options, we note that Petitioner’s communications with the Supervisory HR Specialist occurred months prior to his alleged October 2020 verbal request for a reasonable accommodation. 2022005138 7 We ultimately find no evidence that he “made verbal requests for reasonable accommodation” in October 2020. To the contrary, we note that the Branch Chief testified that Petitioner only requested to take leave to recover from surgery, which she granted in full. The Branch Chief also testified that she asked Petitioner whether he needed any other accommodation, but Petitioner responded that he did not need accommodation. We understand that the parties dispute whether Petitioner made verbal requests for reasonable accommodation in October 2020; however, we note that the MSPB AJ found the testimonies of the responsible management officials to be more credible. Upon review, we find ample evidence to support the MSPB AJ’s finding that Petitioner did not request reasonable accommodation to any Agency official in October 2020. Given Petitioner’s failure to establish that he requested reasonable accommodation, we conclude that the Agency did not fail to reasonably accommodate Petitioner. See Holton v. U.S. Postal Serv., EEOC Appeal No. 01991307 (Nov. 7, 2002) (finding no evidence in the record that complainant advised the agency of his limitation associated and articulated a need for accommodation, and therefore the agency did not violate the Rehabilitation Act); Collins v. Dep’t of the Army, EEOC Appeal No. 0120093074 (Apr. 28, 2011) (finding no evidence that complainant requested reasonable accommodation and therefore the agency did not fail to reasonably accommodate complainant). Disparate Treatment In Petitioner’s case, we find that the MSPB AJ erred by not applying the analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), when deciding Petitioner’s claims of discrimination based on disability, age, and reprisal. We will analyze this case according to the McDonnell Douglas paradigm. See Raphael C. v. Dep’t of Veterans Affairs, EEOC Petition No. 0230160016 (May 10, 2016). We find, however, that the AJ correctly determined that Petitioner did not establish that the Agency discriminated against him as alleged. For Petitioner to prevail, he or 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. 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Petitioner 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). Assuming, arguendo, that Petitioner established a prima facie case of discrimination on the alleged bases, based on our review of the record, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions as indicated above. Specifically, the Branch Chief placed Petitioner on a 30-day PIP because on several occasions between August to October 2020, Petitioner failed to complete his assigned work. 2022005138 8 Furthermore, the Branch Chief and District Chief ultimately determined that removal was warranted due to Petitioner’s failure to demonstrate acceptable performance. With regard to Petitioner’s SF-50, the District Chief maintained that the decision letter that he issued Petitioner clearly indicated that Petitioner would be removed from federal service, effective April 9, 2021. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Petitioner now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. See, e.g., Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). As discussed above, Petitioner offered numerous arguments as to why he believed that the Agency’s articulated reasons were pretextual, such as emphasizing his prior years of satisfactory performance and noting that management routinely extended the deadlines for other employees. We incorporate these arguments by reference. However, after careful consideration, we find that Petitioner cannot persuasively establish pretext. To the extent that management extended the deadlines for other employees, we note that Petitioner did not cite to any evidence to corroborate that assertion. Furthermore, we note that management had concerns not only with Petitioner’s failure to meet deadlines but also his failure to complete assignments. As for his SF-50, we note that all of the responsible management officials denied backdating Petitioner’s SF-50. We agree with the MSPB AJ that the record is devoid of evidence showing that the Agency intentionally backdated Petitioner’s SF-50. CONCLUSION Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB’s decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole. PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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. 2022005138 9 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. 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 Petitioner’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 6, 2023 Date