[Redacted], Randolph T., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jul 26, 2021

Appeal No. 2020002139 (E.E.O.C. Jul. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Randolph T.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020002139 Agency No. ARMEADE16NOV04373 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 18, 2019, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue is whether Complainant established that the Agency discriminated against him based on his disability, or in reprisal for requesting a reasonable accommodation, when in December 2016, his Commercial Driver’s License expired while he was trying to obtain medical information and certification required to renew his license. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator at the Agency’s National Security Agency (NSA) Motor Vehicle Operations Section in Fort Meade, Maryland. 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. 2020002139 2 Complainant stated that in October 2012, he requested a reasonable accommodation for a permanent assignment of the evening shift to the Odenton Station, which was approved. Complainant stated that in 2014, the NSA decided to give the Odenton Station route to contractors, and he was then given the N-11 route. Complainant stated that he requested the N-11 route as a reasonable accommodation on June 1, 2015, because the Occupational Health Officer (OHO) was threatening not to allow Complainant to continue driving that route. Complainant stated that the Agency removed the N-11 route from him on September 9, 2016. Complainant stated that he submitted a reasonable accommodation request for the N-11 route on September 12, 2016, which was denied on March 2, 2017. Report of Investigation (ROI) at 121-24. On November 15, 2016, Complainant was informed that OHO requested information for his Commercial Driver’s License (CDL) exam, including a current cardiologist evaluation. ROI at 161. Complainant stated that he went to see OHO on December 22, 2016, and OHO stated that she needed to recuse herself because she was named in Complainant’s EEO complaint. ROI at 124-25. On December 29, 2016, a Supervisory Occupational Health Physician (SOHP) noted that Complainant was seen in the Occupational Health Clinic but that she was unable to certify Complainant until he provided additional medical information. SOHP added that Complainant had already put in for a consult for most of the required tests through Veterans Affairs and that he should return after obtaining his results. ROI at 162. Complainant stated that he had the tests completed in January 2017, and he had his CDL renewed on February 3, 2017. Complainant stated that he came close to losing his job due to issues with obtaining his certification. ROI at 125. On January 7, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical), and in reprisal for requesting a reasonable accommodation, when: 1. on September 9, 2016, management rescinded Complainant’s reasonable accommodation and failed to provide him with an effective accommodation, and on March 2, 2017, they denied Complainant’s request for a reasonable accommodation; and 2. in December 2016, Complainant’s CDL expired while he was trying to obtain medical information and certification required to renew his license. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant was a qualified individual with a disability and that management officials violated the Rehabilitation Act when they failed to engage in an interactive process upon Complainant’s request for a reasonable accommodation. 2020002139 3 The Agency noted that while the record revealed that there was interaction regarding Complainant’s request, virtually none of the interaction was with Complainant. The Agency determined that once Complainant’s existing accommodation could no longer be granted, management officials should have immediately engaged with Complainant in the interactive process, which would have potentially identified another route to accommodate Complainant, or another effective accommodation. The Agency also noted that despite concerns for passenger safety, no management official performed an individualized assessment to determine if Complainant’s continued employment would pose a significant risk of substantial harm, which could not be eliminated or reduced by a reasonable accommodation. The Agency determined that it failed to engage in the interactive process, resulting in a failure to accommodate, in violation of the Rehabilitation Act. For claim 2, the Agency found that there was no evidence that OHO or the Occupational Health Clinic had any sort of general access to Complainant’s medical records, and that Complainant usually had tests run by his own doctors. The Agency also found that anyone assigned to conduct a health assessment of Complainant would not be unreasonable in requesting the additional tests, in light of the recent awareness of additional limitations to Complainant’s medical condition, as provided by Complainant in September 2016. The Agency determined that Complainant did not show that the Agency discriminated against him when his CDL expired while he was trying to obtain medical information and certification required to renew his license. The Agency concluded that Complainant proved that he was discriminated against on the basis of his disability when, beginning in September 2016, management officials failed to engage in the interactive process with the Complainant and failed to provide him with an effective reasonable accommodation, in violation of the Rehabilitation Act; Complainant was not discriminated against on the basis of disability with respect to the December 2016 lapse in his medical certification; and Complainant was not subjected to reprisal for having requested reasonable accommodations, with respect to any of his claims. The Agency then ordered remedial relief, including compensatory damages and reasonable attorney’s fees and costs.2 Complainant filed the instant appeal and he submitted two statements and 67 documents in support of his appeal. The Agency opposed Complainant’s appeal. On March 2, 2020, Complainant responded to the Agency’s opposition. 2 The Agency issued a final decision on Complainant’s request for compensatory damages and attorney’s fees, which Complainant appealed. A separate appellate decision will be issued under EEOC Appeal No. 2020004200. 2020002139 4 CONTENTIONS ON APPEAL Complainant’s Contentions In his initial statement, Complainant states that he is appealing the Agency’s decision for claim 2. Complainant argues that his “main points” are: (1) he made a deal with OHO that was contingent on having his route returned to him; (2) most of the retaliation was engineered by the Director of Human Resources (DHR); (3) Complainant is aware of four coworkers who lost their security clearances and were not removed, while he received a proposed removal in January 2017; (4) Complainant’s supervisor, who approved his reasonable accommodation request in 2015, misrepresented Complainant’s reasonable accommodation requirements and history; and (5) when Complainant contacted the Director of the EEO office for an explanation of the decision for his reasonable accommodation request, she responded, “You cannot tell them what route you will drive.” Complainant also states that he did not receive a copy of the investigative file. In his second statement, Complainant notes that he filed a Freedom of Information Act (FOIA) request and obtained additional information. For example, Complainant provided SOHP’s medical opinions “requiring more testing” than OHO had required and his spirometry results that SOHP relied upon to “demand more testing.” Complainant also provided additional documents, such as a proposed removal, dated January 10, 2017, which he alleged was originated by DHR. Agency’s Contentions The Agency asserts that there is no evidence supporting Complainant’s claim that discrimination motivated the doctors’ unwillingness to medically certify Complainant for his CDL. Regarding DHR, the Agency notes that she played no role in the medical analysis or the medical information gathering or delivery. The Agency also states that Complainant’s other arguments on appeal are unrelated to claim 2. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2020002139 5 ANALYSIS AND FINDINGS As an initial matter, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. See id, at Chap. 9, § IV.A.3. While Complainant provided arguments related to his reasonable accommodation claim, he did not contest the Agency’s findings for claim 1, and he specified that he was appealing the Agency’s decision regarding claim 2. We also note that the Agency has not challenged its previous finding of discrimination for claim 1. As such, we will only address claim 2 in the instant decision. We AFFIRM the Agency’s findings that Complainant proved that he was discriminated against on the basis of his disability when, beginning in September 2016, management officials failed to failed to provide Complainant with an effective reasonable accommodation, in violation of the Rehabilitation Act, and Complainant was not subjected to reprisal regarding his request for a reasonable accommodation. To the extent that it has not already done so, we ORDER the Agency to take remedial action, in accordance with the Order below. In addition, we note that Complainant raises additional issues, such as his proposed removal. However, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Accordingly, we will not address any issue aside from claim 2. Complainant’s Appeal Statements and Documents We find that Complainant’s March 2, 2020, response to the Agency’s opposition brief is untimely. The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). As such, we will only consider the arguments in Complainant’s two timely statements. In addition, as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, Complainant stated that he subsequently obtained new documents in response to his FOIA request; accordingly, the Commission will consider this new evidence on appeal. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. 2020002139 6 Once Complainant has established a prima facie case, 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). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability and in reprisal for requesting a reasonable accommodation, we find that the Agency proffered legitimate, nondiscriminatory reasons for its action. The record shows that SOHP determined that Complainant needed additional tests prior to providing a medical clearance for his CDL. ROI at 162. On appeal, Complainant provided SOHP’s detailed notes from his visit on December 29, 2016. SOHP noted that Complainant started the CDL process at another facility, which did not clear him due to insufficient information. SOHP stated that she reviewed Complainant’s provided medical documents, but that she needed additional information. For example, SOHP stated that their lab was unable to perform “ABGs,” and that Complainant would need to obtain that from his treating provider. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Here, Complainant alleged that OHO and the DHR were responsible for retaliation, which led to his CDL expiration while he was trying to obtain medical information and certification required to renew his license. However, Complainant did not provide any supporting evidence and only made bare assertions, which are insufficient to show pretext for discrimination. Even crediting Complainant’s assertion that OHO and DHR had a retaliatory motive, there is no evidence showing that either influenced SOHP’s determination that Complainant required additional tests for his certification, and we note that Complainant did not allege any retaliatory motive by SOHP. Accordingly, we AFFIRM the Agency’s finding that Complainant did not establish that the Agency discriminated against him based on disability, or in reprisal for requesting a reasonable accommodation, when in December 2016 his CDL expired while he was trying to obtain medical information and certification required to renew his license. 2020002139 7 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 decision finding that Complainant proved that he was discriminated against on the basis of his disability when, beginning in September 2016, management officials failed to provide Complainant with an effective reasonable accommodation, in violation of the Rehabilitation Act; Complainant was not discriminated against on the basis of disability with respect to the December 2016 lapse in his medical certification; and Complainant was not subjected to reprisal for having requested reasonable accommodations, with respect to any of his claims. Accordingly, to the extent that it has not already done so, we ORDER the Agency to take further action, in accordance with the Order below. ORDER To the extent that it has not already done so, the Agency is ordered to take the following remedial actions: 1. Within forty-five (45) calendar days of the date this decision is issued, all managers and supervisors of Army civilian employees employed by the U.S. Army Garrison - Fort Meade Department of Human Resources, Motor Vehicle Operations will be provided training with respect to their roles and responsibilities in responding to employees’ and applicants’ requests for reasonable accommodation(s), engaging in the interactive process, identifying and providing reasonable accommodations, and managing existing/implemented accommodations. 2. Complainant may be entitled to compensatory damages if he is able to establish a causal relationship between the prohibited discrimination and any pecuniary or non-pecuniary losses. Compensatory damages are payable for the time period of September 7, 2016 (the date on which the Agency was obligated to initiate the interactive process with the Complainant to identify a new accommodation) to the present. Any claim for compensatory damages must contain objective or other evidence of damages to support the claim pursuant to guidance given in Carle v. Dep’t of the Navy, EEOC Appeal No.01922369 (Jan. 5, 1993). Complainant will cooperate in the Agency’s efforts to compute the amount of compensatory damages. a. Complainant will submit the claim to the Agency Representative, within thirty (30) calendar days of receipt of this decision, with a copy to the office of EEO Compliance and Complaints Review (EEOCCR) at the following address: 2020002139 8 Director Department of the Army EEO Compliance and Complaints Review ATTN: SAMR-EO-CCR 5825 21st Street Building 214, Room 129 Fort Belvoir, Virginia 22060-5921 Fax No. (703) 805-8722. b. The Agency Representative will notify EEOCCR of any dispute as to compensatory damages and file a brief supporting its position within fifteen (15) calendar days of its receipt of the compensatory damages claim. c. In the event of a dispute as to the amount of compensatory damages, the Director, EEOCCR, will subsequently issue a final decision on the issue of compensatory damages within sixty (60) calendar days of the date the Agency Representative receives the compensatory damages claim, with appeal rights to the EEOC. 3. Army Regulation 690-600, Section 7-5(a) requires that the Agency determine whether appropriate corrective action is necessary to prevent recurrence of the conditions giving rise to this finding of discrimination. 4. Complainant is entitled to reasonable attorney’s fees and costs associated with this complaint. While the record indicates that Complainant did not have an attorney representative, this award includes any work done by an attorney retained by Complainant to assist with preparation of a petition for compensatory damages. Complainant and his attorney bear the burden of establishing entitlement to fees or costs. Complainant will cooperate in the Agency’s efforts to compute the amount of attorney’s fees. Any request for attorney’s fees will be submitted to the Agency Representative within thirty (30) calendar days of receipt of this decision, with a copy to the Director, EEOCCR, at the address above. ln the event of a dispute as to reasonable attorneys’ fees, the Director, EEOCCR will subsequently issue a final decision on the issue of attorney’s fees and costs within sixty (60) calendar days of the date the Agency Representative receives the request for attorney’s fees. A statement of attorney’s fees and costs must be accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. A verified statement of fees and costs shall include the following: a. A list of services rendered itemized by date, number of hours, detailed summary of the task, rate, and attorney’s name; b. Documentary evidence of reasonableness of hours, such as contemporaneous time records, billing records, or a reasonably accurate substantial reconstruction of time records; 2020002139 9 c. Documentary evidence of reasonableness of rate, such as an affidavit stating that the requested rate is the attorney’s normal billing rate, a detailed affidavit of another attorney in the community familiar with prevailing community rates for attorneys of comparable experience and expertise, a resume, a list of cases handled, or a list of comparable cases where a similar rate was accepted; and d. Documentation of costs. 5. The Agency is ordered to post copies of the attached notice at its Directorate of Human Resources, Transportation Operations facility. Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted by the Agency within seven (7) calendar days of receipt of this decision, and shall remain posted for sixty (60) consecutive calendar days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that the notice is not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Director, EEOCCR, within ten (10) calendar days of the expiration of the posting period. 6. Within 45 calendar days of the date of this decision, the Headquarters, Installation Management Command EEO Director will provide or otherwise ensure that the U.S. Army Garrison - Fort Meade EEO Officer and Disability Program Manager receives comprehensive Disability Program Management training. POSTING ORDER (G0617) The Agency is ordered to post at its Directorate of Human Resources, Transportation Operations facility copies of the attached notice. Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. 2020002139 10 Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 2020002139 11 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. 2020002139 12 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 July 26, 2021 Date