[Redacted], Kennith M, 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Sep 26, 2022

Appeal No. 2021004530 (E.E.O.C. Sep. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kennith M,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021004530 Hearing No. 451-2019-00223X Agency No. HS-CBP-02789-2018 DECISION On August 10, 2021, 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 July 8, 2021, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant was a former Border Patrol Agency, GS-1896-12 at the Agency’s Las Cruces Station in Las Cruces, New Mexico. Complainant was employed from August 20, 2009 until his removal on February 4, 2019, which occurred because he failed to meet a condition of employment. ROI at 303 and 308. Complainant was born in 1973 and was 45 years old when the events at issue occurred. ROI at 37 and 127. 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. 2 2021004530 In July 2017, within a period of three days, Complainant was twice arrested for Driving Under the Influence (DUI) in New Mexico. As part of the legal proceedings, Complainant was not allowed to drive without an interlock device on his vehicle. ROI at 37 and 138. Beginning in August 2017, Complainant performed administrative duties rather than the standard Border Patrol Agent duties. ROI at 52 and 273. In March 2018, Complainant was disciplined by the Agency and received a 40-day suspension without pay. Complainant alleged that, during that period, he elected to move from Las Cruces, New Mexico to El Paso, Texas. ROI at 22. On May 11, 2018, Complainant was found guilty of DUI and was ordered to obtain ignition interlock devices on any vehicle he operated for a period of one year. The Agency indicated that Complainant was required to drive government vehicles and Interlock devices could not be installed on government vehicles. ROI at 51-2 and 138. In August 2018, the Agency proposed Complainant’s removal for failure to meet a condition of employment. ROI at 51. In an August 29, 2018, letter, a Nurse Practitioner (located in Las Cruces, New Mexico) indicated that Complainant was experiencing an increase in symptoms mainly due to financial and time burden of commuting two hours a day. Complainant indicated that his requested transfer was needed to continue treatment for his mental disabilities (depression, anxiety, and alcoholism). ROI 22, 25, and 274-75. On September 4, 2018, Complainant submitted his first request for accommodation. In that request, Complainant requested to be transferred from Las Cruces, New Mexico to El Paso, Texas. Complainant also indicated that he was requesting Leave Without Pay (LWOP) if his request to transfer was denied. ROI at 23 and 136-38. Complainant indicated that the accommodation was needed because he was recovering from the conditions of depression and anxiety and he was a recovering alcoholic. When asked why the accommodation was needed, he indicated that “Accommodations would permit Employee to continue working for Agency.” ROI at 35. On September 14, 2018, the Agency and Complainant participated in the interactive process regarding the accommodation request. ROI at 272-76. During that meeting, Complainant indicated that he was receiving medical treatment from professionals in Las Cruces New Mexico but was in the process of transitioning to treatment in Texas. ROI at 23 and 172. On September 28, 2018, the Agency provided a response to Complainant’s request for accommodations. In that response, the Agency denied Complainant’s request for transfer/6 months of LWOP. Instead, the Agency indicated Complainant could use leave in order to attend any doctor’s appointments or, alternatively, swap days off with another employee. ROI at 51 and 282-84. The Agency also indicated that it would approve any reasonable swap request. ROI at 22-5, 46, and 137. On October 2, 2018, Complainant submitted a second request for reasonable accommodation in which he again requested to be transferred to El Paso, Texas or receive six months LWOP. ROI at 24, 52, and 137. 3 2021004530 On November 15, 2018, the Agency again denied the request, offering the same alternative accommodations. Based on the interactive process, the Agency indicated that Complainant was going to Employee Assistance Program (EAP) twice a month and seeing another doctor once a month. The Agency indicated that Complainant had been averaging three appointments per month for all his treatments which were conducted off duty, and that management had been able to modify his work schedule/shift times for him to be able to attend all treatments. The Agency also advised Complainant that he may request leave under the Family and Medical Leave Act (FMLA). ROI at 25, 52 and 136-37. On December 17, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (mental), age (45), and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 and Section 501 of the Rehabilitation Act of 1973 when: 1. On September 28, 2018, and November 15, 2018, Complainant’s requests for a reasonable accommodation were denied. The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The parties had the opportunity to engage in discovery. On April 7, 2021, the Agency filed a motion for summary judgment and Complainant responded. The AJ issued findings of fact and conclusions of law on the record having determined there were no issues of material fact to be resolved by a hearing. The AJ granted the Agency’s motion for summary judgment and issued a decision without a hearing on June 4, 2021. The AJ explained that because Complainant’s need for reasonable accommodation was not obvious, the Agency was entitled to documentation establishing that Complainant had a disability that necessitated reasonable accommodation. According to the AJ, assuming, arguendo, that Complainant is disabled, he must establish that the Agency failed to accommodate him. The AJ determined that Complainant failed to do so. The AJ found that Complainant failed to demonstrate that the Agency denied him a proper accommodation. The AJ observed that the medical documentation that Complainant submitted through the reasonable accommodations process and through the interactive process did not establish that Complainant needed a reassignment because of his disability. The AJ also observed that based on the material presented as part of his accommodation requests and through the interactive process, the Agency believed Complainant’s preferred accommodation of transfer to a different location and long term LWOP was not supported by medical documentation. 4 2021004530 After reviewing all evidence and the parties’ dispositive motion pleadings, the AJ also found that the material submitted by Complainant failed to adequately support his proffered accommodations; and that the Agency’s identified accommodations were effective. According to the AJ, while Complainant may have preferred to be relocated to a different geographic region for a variety of personal reasons, medical documentation failed to establish that his medical conditions required him to be reassigned to Texas or granted long term LWOP. This finding, the AJ noted, is supported by facts identified by the Agency in its response to Complainant’s second reasonable accommodation request wherein the Agency indicated that, during the period of time the granted accommodation was in place, Complainant averaged approximately three appointments per month and was able to attend all appointments without issue through utilizing sick leave and supervisor approved shift changes. Furthermore, asserted the AJ, it is clear that Complainant was receiving care in New Mexico before he unilaterally decided to move to Texas. The AJ determined that Complainant failed to establish that required services/providers were unavailable in New Mexico and the relocation/reassignment was needed for him to receive sufficient medical treatment/services; and that no failure to accommodate finding on this basis is proper. The AJ noted that while Complainant’s medical providers indicated they recommended to relocate Complainant, they failed to establish why such a drastic accommodation of last resort was necessitated. According to the AJ, as Complainant is not entitled to the accommodation of his choosing and he had failed to establish the provided accommodation was note effective, he had failed to establish a prima facie case and his claim of failure to accommodate failed. The AJ observed that in addition to alleging failure to accommodate, Complainant also alleged that the denial of his transfer constituted disparate treatment based on age/disability and was also retaliatory. According to the AJ, throughout the ROI and in his response to summary judgment, Complainant alleged that there were others who were treated more favorably. The AJ also noted that Complainant generically alleged that other employees were granted temporary transfers when pregnant or going back to school. The AJ asserted that while Complainant generically made those allegations and again repeated them in an affidavit attached to his response to summary judgment, he failed to identify the individuals or provide any evidence in support of his assertions that would establish that they were, in fact, proper comparators. According to the AJ, assuming there were actually such individuals who were granted transfers, which was not clear, Complainant failed to establish that relevant aspects were nearly identical. The AJ cited to Commission precedent, stating that it is well settled that subjective belief or speculation as to motive, intent, or pretext are not sufficient to satisfy the Complainant’s burden of proof in a Title VII case. The AJ determined that Complainant’s allegations were unsupported by any evidence other than Complainant’s opinion and bare assertions. 5 2021004530 According to the AJ, as Complainant had failed to present comparator evidence and there was no other evidence to raise an inference of discrimination, he had failed to establish a prima facie case of discrimination. The AJ also determined that Complainant’s claims of reprisal were less than clear. The AJ observed that prior to the instant request for accommodation, Complainant had not previously participated in protected activity. Accordingly, asserted the AJ, it appeared as if Complainant was alleging that management’s denial of the accommodation request was retaliatory for filing the same accommodation request. As Complainant had failed to establish that he previously engaged in protected activity, the AJ found that his claim of reprisal failed. The AJ also found that Complainant failed to establish that he was subject to a materially adverse action. Instead, the AJ noted, management approved an effective accommodation that was supported by proper medical documentation. As Complainant has not established proper protected activity or that he was subject to an adverse action, the AJ determined that he had failed to establish a prima facie case of reprisal. According to the AJ, even if Complainant had established a prima facie case of discrimination or reprisal, which he did not, he failed to present evidence that management’s decisions relating to his request for transfer were a pretext for either discrimination or reprisal. Instead, observed the AJ, management engaged in the interactive process and made reasonable determinations based on the materials presented by Complainant as part of the accommodations process. The AJ asserted that while Complainant would have preferred a different accommodation for various reasons, he failed to present evidence which would establish management’s selection of an alternate effective accommodation was a pretext for discrimination/reprisal. 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. This appeal followed. CONTENTIONS ON APPEAL Neither Complainant nor the Agency submitted an Appeal Statement. ANALYSIS AND FINDINGS 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- 6 2021004530 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). 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. Given that Complainant had access to the ROI concerning his complaint and the opportunity to develop the record significantly during the EEO investigation and discovery before the AJ, we find that summary judgment was appropriate in this case. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, 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. 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 7 2021004530 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. 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. 8 2021004530 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 September 26, 2022 Date