[Redacted], Mckinley P., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Dec 19, 2022

Appeal No. 2022000691 (E.E.O.C. Dec. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mckinley P.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2022000691 Hearing No. 530-2020-00235X Agency No. BOP-2019-0665 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 October 18, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Correctional Officer, GS-7, at the Agency’s Federal Correctional Complex in Hazelton, West Virginia. On June 7, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on disability (Post-Traumatic Stress Disorder - PTSD) and in reprisal for prior protected EEO activity (requesting a reasonable accommodation) when: 1. on February 27, 2019, Complainant was directed to submit a urinalysis; and 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. 2022000691 2 2. on March 6, 2019, and continuing until he retired, Complainant was pressured to resign from his position, placed on administrative leave, became the subject of an internal investigation, and his reasonable accommodation was removed. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the Agency submitted a Motion for Summary Judgment. The AJ issued, on September 10, 2021, a decision by summary judgment, over Complainant’s objections, in favor of the Agency. The instant appeal. On appeal, Complainant argues, through counsel and in pertinent part, that summary judgment was not appropriate. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. 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. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. 2022000691 3 Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Department of Community 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Delayed Drug Test Complainant argues that the Agency retaliated against him when the Agency subjected him to a February 27, 2019 urinalysis for the first time during his tenure, soon after he had requested a reasonable accommodation (light/limited duty assignment) in January 2019. Consequently, Complainant asserts that the Agency targeted him for drug testing because of his disability (PTSD, anxiety, and insomnia). The record indicates that the Agency had a Drug Free Workplace Program for all Agency employees, including Complainant’s position as a Correctional Officer. Consequently, from the beginning of Complainant’s employment with the Agency, he acknowledged on August 24, 2015 that his position was subjected to random drug testing. The Complex Warden explained that because of the Drug Free Workplace policy, approximately 25% of employees are randomly tested each year for illegal/unauthorized substances. Additionally, the Human Resources Manager testified that Complainant was randomly selected for a drug test (urinalysis), as directed by the Central Office located in Washington, D.C. 2022000691 4 The Human Resources Manager explained that each quarter, the National Coordinator provided a list of employees to be tested and employees are informed during their first day of employment that their positions are subject to random testing. The record indicates that between October 1, 2016 and November 14, 2019, 585 employees, including Complainant, were randomly selected for drug screening at Hazelton. However, the Chief of the Drug Free Workplace program (Chief) acknowledged that while Complainant’s name was randomly selected for testing in June 2017, Complainant was not tested until 2019, because, in 2017, Hazelton was not testing current employees pursuant to the quarterly schedule which resulted in a backlog. The Chief explained that prior to 2017, he and the Commander conducted audits of the various federal correctional complexes including Hazelton. However, when the Commander retired in April 2017, the individual complexes were responsible for collecting and conducting their own drug testing which resulted in a backlog. The Chief noted that following the Commander’s retirement, Hazelton was only conducting pre-employment drug tests, but had stopped collecting random drug tests from current employees subjected to random drug testing. As a result, current employees, like Complainant, were not being tested and a backlog for these individuals developed. We conclude that the weight of the evidence described above fully supports the AJ’s conclusion that the delay between Complainant’s initial placement on the June 2017 testing list and Complainant’s February 2019 testing cannot be attributed to Complainant’s January 2019 request for reasonable accommodation. Placement on Administrative Leave Complainant testified that he used Cannabidiol (CBD)2 oil to treat his Post-Traumatic Stress Disorder. Complainant explained that his use of CBD oil resulted in him having a positive urinalysis for marijuana, even though Complainant asserted that his use of CBD oil was an authorized substance because it derived from hemp which was excluded from the federal Controlled Substances Act. Nevertheless, Complainant stated that management placed him on administrative leave which prevented him from performing any of his duties. The Chief, however, indicated that CBD was still illegal as it was classified as a Schedule I drug and remained on the Controlled Substance Act before and after Complainant was tested in February 2019. The Chief acknowledged that the Farm Bill Act mandated that if a drug contained more than three percent of THC, then it was an illegal product. Consequently, the Chief explained that a drug must fit the guidelines of the Farm Bill Act (i.e., less than three percent THC) and must also not be considered a Schedule I drug based on the Controlled Substance Act. 2 Cannabidiol (CBD) is an active ingredient found in cannabis/marijuana that is derived from the hemp plant and does not have the same properties as tetrahydrocannabinol (THC) which is responsible for the effects of marijuana on the mental state. In 2018, Congress passed signed into the law the Agriculture Improvement Act (Farm Bill) which removed hemp from the federal Controlled Substances Act. 2022000691 5 In Complainant’s case, the Chief indicated that the results of Complainant’s urinalysis tested positive for marijuana because they exceeded the acceptable threshold for THC (i.e., Complainant’s THC levels were more than three percent). We note that the Chief’s reasoning is consistent with the Agency’s Drug Free Workplace policy which states, in pertinent part: Employees are cautioned to take note that, regardless of individual state legislation or initiatives, the use of any Federal Controlled Substances Act, Schedule I drug, whether for non-medical or ostensible medical purposes, violates Federal law and the Federal Drug Free Workplace Program. . . . We also acknowledge Complainant’s argument that he had a prescription to use CBD oil. Here, the record includes a copy of the December 6, 2018 physician’s note indicating that Complainant used CBD oil for anxiety, PTSD, and insomnia. However, there is no indication of the dosage, or the specific type of CBD oil Complainant used to treat his conditions. Consequently, the Agency determined, following its investigation of the matter, that Complainant had not provided a legitimate medical explanation for his positive urinalysis. Similarly, the Deputy Captain, Complainant’s second level supervisor, explained that, from his understanding, Complainant’s urinalysis results came back testing positive for THC levels that “were so high that it couldn’t have been just from this prescription.” Ultimately, Complainant’s test results exceeded the acceptable threshold for THC which resulted in him testing positive for marijuana which is a prohibited drug. Because of Complainant’s urinalysis tested positive for marijuana, the record indicates that Complainant was placed on administrative leave in accordance with Agency policy. The Drug Free Workplace policy states, in pertinent part, that: disciplinary action will be taken against any Bureau employee determined to use drugs who has not presented herself and himself to assistance according to the terms of Section 8 of this program statement. Here, the Complex Warden explained that it was normal protocol to place an employee on administrative leave and refer the employee for an internal investigation after testing positive for an illegal/unauthorized substance. Consequently, the Complex Warden explained that Complainant’s placement on administrative leave and subsequent internal investigation was unrelated to Complainant’s reasonable accommodation request and was based on the Agency’s Drug Free Workplace policy. Additionally, the Human Resources Manager further confirmed that it was normal procedure to place Complainant on administrative leave following Complainant’s positive urinalysis for marijuana. The Chief also explained that Executive Order 12546 mandates that Agencies remove employees in sensitive positions who are found using illegal drugs, before the completion of an employee assistance program. 2022000691 6 The Chief further explained that there were only two scenarios where an employee, who had a positive urinalysis, would be allowed to return to a drug-testing position: (1) after issuance of an Administrative Judge’s decision following a Merit Systems Protection Board hearing; or (2) after an employee self-disclosed using an unauthorized substance before being tested. The Chief noted that none of these options applied in Complainant’s situation. On appeal, Complainant asserts that that Agency should have considered mitigating factors and determined that the disciplinary actions Complainant was subjected to (placement on administrative leave) was not appropriate in this instance. Specifically, Complainant argues that the Agency should have considered that he was using CBD oil at the direction of his physician and that CBD derived from hemp is a federally legal product as mitigating factors. However, our review of the record indicates that the Agency made its determination to pursue disciplinary action based on guidance from the Agency’s Drug Free Workplace policy as well as Executive Order 12546. As previously discussed, Complainant’s situation did not fall in either of the two exceptions that would have allowed him to return to work following a positive uranalysis. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons resulted from disparate treatment based on his disability or reprisal for prior protected EEO activity. Consequently, these claims are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his disability or reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Reasonable Accommodation To establish that he 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 him with a reasonable accommodation. See 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). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. As further discussed below, we find that Complainant is a qualified individual with a disability within the meaning of the Rehabilitation Act. Complainant testified that he was diagnosed with Post Traumatic Stress Disorder (PTSD) in 2010 while he was deployed in the military. Complainant explained that PTSD affected his ability to sleep, concentrate, think, communicate, and work. Complainant also explained that he notified the Agency of his condition when he applied for the position, and he further notified the Agency of his condition when his symptoms exacerbated requiring hospitalization in August 2018 and February 2019. Additionally, Complainant asserted that the Agency was aware of his condition when he requested a reasonable accommodation in January 2019. 2022000691 7 Complainant stated that he requested a light/limited-duty assignment in January 2019.3 Specifically, Complainant explained that his physician indicated that he was temporarily restricted from physically responding to emergencies and from carrying/shooting a firearm. Consequently, Complainant could not perform the essential functions of his position as a Correctional Officer. However, he could perform the essential functions of the light duty assignment. The physician indicated that Complainant would likely be able to return to regular duty on February 22, 2019. However, his return to regular duty date was extended to March 19, 2019. Complainant testified in his affidavit that the Agency granted this extension. However, Complainant argued that thereafter, the Agency subjected him to drug testing and then placed him on administrative leave, which terminated his reasonable accommodation. Complainant further argued that the Agency failed to engage in the interactive process or offer him a reassignment as an alternative accommodation. As further explained below, our review of the record supports that the AJ correctly determined that Complainant failed to demonstrate that the Agency violated the Rehabilitation Act. Here, the Human Resources Manager, clarified that Complainant was provided with a temporary job modification (light duty assignment). However, Complainant’s temporary job modification was removed when he was placed on administrative leave for a positive urinalysis which was in compliance with the Agency’s Drug Free Workplace policy. Consequently, the Human Resources Manager explained that the removal of Complainant’s temporary job modification was unrelated to Complainant’s disability. The Deputy Captain further clarified that because Complainant did not resign after his positive urinalysis, the Agency had no choice, pursuant to the Drug Free Workplace police, but to place Complainant on administrative leave (and subsequent investigation) because, as previously discussed, Complainant was no longer allowed in the office during a pending investigation. We further address Complainant’s argument that the Agency failed to find him a reassignment as an accommodation. We note that reassignment to a vacant, funded position is an accommodation of last resort. Here, the Chief testified that there were no law enforcement positions at the Hazelton facility that were not subject to drug testing. Consequently, a job search at the facility would not have generated any positions Complainant qualified for reassignment. Moreover, we note that with a positive urinalysis for marijuana, no accommodation would have allowed Complainant to the perform the essential functions of his position which was subject to random drug testing. 3 A copy of a January 24, 20219 letter from the Complex Warden to Complainant indicates that Complainant was offered a temporary job modification based on January 21, 2019 statements from Complainant’s physician. The temporary job modification was effective January 28, 2019 with a re-evaluation after Complainant’s scheduled February 22, 2019 physician appointment. 2022000691 8 Based on this evidence discussed above, we find that Complainant failed to demonstrate that the Agency violated the Rehabilitation Act when his temporary modified job assignment was terminated after he was placed on administrative leave and when Complainant was not reassigned to another position. Harassment To prove his claim of hostile environment harassment, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his disability, age, or reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Complainant stated that the Agency pressured him to resign from his position. Specifically, Complainant explained that during a March 6, 2019 meeting with the Human Resources Manager, Complainant was informed that he had two options - (1) resign or (2) go on administrative leave while the Agency conducted an investigation regarding him testing positive for marijuana. Complainant further indicated that the Human Resources Manager informed him that if he opted for an investigation, the results of that investigation would likely result in his termination from the Agency, and as a consequence, Complainant would lose his medical retirement benefits. However, Complainant acknowledged that his union representative, who was also present at the meeting, recommend that he not resign because the union representative did not believe that the information the Human Resources Manager provided (regarding his medical retirement and termination) was accurate. Ultimately the Agency placed Complainant on administrative leave, and Complainant stated that he experienced “extreme stress,” and felt “scared, angry, and harassed” during the March 6, 2019 meeting especially regarding the potential for him to lose his medical retirement and financial livelihood. However, the Human Resources Manager denied that Complainant was pressured to resign from the Agency. The Human Resources Manager indicated that, at the time, she believed that Complainant would lose his chance for disability retirement if the results of the investigation of his positive urinalysis resulted in his termination. However, the Human Resources Manager testified that she contacted the benefits unit on March 6, 2019, the same day of the meeting, and learned that her initial belief, that Complainant’s disability retirement would be jeopardized, was incorrect. Thereafter, the Human Resources Manager stated that she informed the union representative and Complainant of her error and made it very clear to Complainant that he had the choice to either retire or be placed on administrative leave pending an investigation. 2022000691 9 The Deputy Captain also testified that he was present for the March 6, 2019 meeting and he denied that Complainant was pressured to resign. The Deputy Captain also noted that it was during this meeting when he learned for the first time that Complainant had filed for disability retirement. We find considering these allegations, even if true, Complainant has not presented sufficient credible evidence demonstrating that considerations of his disability or retaliatory animus motivated management’s actions towards Complainant. The record indicates that the Human Resources Manager admitted that she incorrectly advised Complainant that his disability retirement would be jeopardized if he was terminated from his position for a positive urinalysis. However, the record reflects that the Human Resources Manager corrected her mistake and informed Complainant that it was his decision to either resign or go on administrative leave pending an investigation of his positive drug test results. The record indicates that Complainant ultimately elected not to resign. We further note that Complainant has not alleged that he was subjected to a constructive discharge. Additionally, the record indicates that Complainant initiated the disability retirement process in January 2019, which occurred before Complainant was subjected to the February 2019 drug test and before Complainant’s subsequent March 2019 positive result and placement on administrative leave. Complainant’s disability retirement was voluntarily initiated in January 2019. and became effective on August 3, 2019. The incidents involved are of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). Additionally, aside from Complainant’s bare assertions there is simply no evidence that the disputed actions were motivated in any way by Complainant’s disability or reprisal for prior protected EEO activity., and therefore, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION After careful review of the record, including Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the Agency discriminated against him as alleged. The Agency’s final order implementing the AJ’s decision is AFFIRMED. 2022000691 10 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 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). 2022000691 11 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 December 19, 2022 Date