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

Equal Employment Opportunity Commission

Jun 15, 2022

Appeal No. 2021002348 (E.E.O.C. Jun. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rob B.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021002348 Agency No. ARAPG18DEC05183 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s December 9, 2020 final decision finding no discrimination concerning his 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Hearing Technician (HT)2, GS-0640-09, step 5, at the Agency’s Army Public Health Center (APHC), Aberdeen Proving Ground, Maryland. On January 29, 2019, Complainant filed his complaint alleging discrimination based on disability when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 We note that a Hearing Technician is also referred to as a Hearing Health Technician. 2021002348 2 1. On October 9, 2018, Human Resources Injury Compensation Specialist (HR1) and his supervisor (S1) informed him that his employment would be terminated and that there was no longer any job offers on the table for him. 2. On November 6, 2018, he was informed that his position had been filled. 3. On November 19, 2018, he received a notice of proposed termination of his wage loss OWCP compensation issued by HR1. 4. On January 2, 2019, he received a notification from Human Resources (HR) Civilian Personnel online that he was deemed ineligible for the position of HT, GS-0640-9, #NEAG182237973976,3 Vacancy Identification Number 10343976. Complainant has not challenged the Agency’s framing of his claims. After completion of the investigation of the complaint, the Agency issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant indicated that he had been in the GS-9, HT position since June 2011. He sustained an on-the-job injury (a herniated disc requiring a surgery) on April 10, 2015 and remained in a non-work status for over three years since then. Regarding claim 1, HR1 stated that on June 14, 2018, Complainant submitted his doctor’s report, dated May 23, 2018, releasing him to perform light duty with ten pounds and four hours per day restrictions. On July 18, 2018, HR1 initially offered Complainant a Supply Technician, GS-7, step 10, eight hours (not four hours) per day. When she realized the error, HR1 offered Complainant the same position with four hours per day on August 14, 2018. Complainant declined the offer on September 10, 2018, indicating that he wanted to return to his HT position he held before the injury and that he would be released to full duty on September 26, 2018, on his next scheduled doctor’s appointment. HR1 indicated that on October 9, 2018, she informed Complainant via email that if he chose not to accept the job offer as a Supply Technician, his Office of Workers’ Compensation Programs (OWCP) compensation benefit would be terminated. S1 denied talking to Complainant as alleged since Complainant left his position at APHC on June 15, 2018 and was assigned to a different Agency organization in San Antonio, Texas. Regarding claim 2, Complainant claimed that HR1 told him that his HT position had been filled due to his extended absence. HR Division Chief with APHC (HR2) indicated that HR1 miscommunicated to Complainant because HR1 was unaware of the fact that management decided to restructure Complainant’s prior HT position. 3 The Agency also referred to the subject job announcement as #NEAG182237973676. 2021002348 3 HR2 noted that as a result of management’s restructure, the Civilian Personnel Advisory Center (CPAC) determined that Complainant was no longer qualified for a new HT position which had a new position description, with different qualifications than the old HT position description. Regarding claim 3, the record indicates that on October 17, 2018, the Department of Labor issued Complainant a notice of proposed termination terminating his wage loss OWCP compensation as a result of his April 10, 2015 injury. Therein, Complainant was informed that his physician submitted a report, dated September 26, 2018, indicating that he reached maximum medical improvement and released him to return to work without restrictions. The record also indicates that Complainant was subsequently issued the Department of Labor’s decision, dated November 19, 2018, terminating his wage loss compensation for his injury effective November 20, 2017. Regarding claim 4, HR2 indicated that after the restructuring of the HT position, the CPAC determined that Complainant was no longer qualified for a new HT, GS-9 position. A senior specialist reviewed Complainant’s resume and determined that he did not meet the qualifications for the new HT position. Specifically, the senior specialist found that Complainant’s resume did not reflect that he met all the required specialized experience, i.e., possessing experience with inventory and property books requirements for hearing equipment, conducting life cycle management for hardware and software, and identifying and resolving hardware and/or software issues for hearing test systems. The record does not contain Complainant’s resume. The Agency stated that an employee was selected for the HT position, under the vacancy at issue, in February 2019. Based on the foregoing, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions. The Agency stated that Complainant’s OWCP claim was not within the jurisdiction of the EEO complaint process. Regarding Complainant not getting his prior HT position, the Agency stated that although Complainant was offered the Special Technician position within his physical limitations, he declined the offer. HR1 noted that the Agency was required to keep Complainant’s HT position only up to one year. In 2018, management restructured the HT position and Complainant was no longer qualified for the restructured HT position. Complainant appealed from the Agency’s decision but did not submit any statement or Brief in support. ANALYSIS AND FINDINGS 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), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of 2021002348 4 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"). Disparate Treatment To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. 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). Here, the Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. In the instant case, Complainant has not claimed that he was denied a reasonable accommodation for his disability. The record indicates that Complainant was out of work on OWCP benefits over three years as a result of his on-the-job injury on April 10, 2015. On May 23, 2018, Complainant’s doctor released him for light duty work with medical restrictions. Complainant was offered the Supply Technician, GS-7, step 10 position within his medical restrictions. Complainant declined the offer. Regarding Complainant’s OWCP claim, i.e., a termination of his OWCP benefits, we agree with the Agency that the Commission lacks jurisdiction to consider the subject matter since it constituted a collateral attack on an OWCP decision. 2021002348 5 The Agency indicated that Complainant’s prior HT position was restructured in 2018, and he was no longer qualified for the HT position. Complainant does not contest the Agency’s statements about his qualifications for the new HT position. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2021002348 6 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. 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 June 15, 2022 Date