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

Equal Employment Opportunity Commission

Mar 30, 2023

Appeal No. 2022001225 (E.E.O.C. Mar. 30, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trevor S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022001225 Hearing No. 490-2020-00071X Agency No. ARPINEB19JUL02793 DECISION On January 4, 2022, 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 December 12, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Chemical Engineering Technician, GS-0802-12, at the Agency’s Edgewood Chemical and Biological Command Directorate facility in Pine Bluff Arsenal, Arkansas. On August 2, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (60) when, on July 15, 2019, and July 18, 2019, Chief Medical Officer gave him a failing result on a step test, the requirements of which were changed after Complainant initially passed the test on June 27, 2019, which prevented him from going on temporary duty to Australia from July 19, 2019, to September 7, 2019; and, Chief Medical 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. 2022001225 2 Officer and Occupational Health Technician (“Health Tech”) made remarks about Complainant’s age during the testing process. The Agency accepted the complaint and conducted an investigation that produced the following pertinent facts. Although Complainant works for the Agency in Arkansas, employees in his group at times perform their duties at different worksites. Complainant’s supervisors had selected him to do a job as an Operator at a worksite in Australia. Report of Investigation (ROI) at 320-21. Part of the requirement to work there as an Operator, which would have been Complainant’s job, was to pass a step test. Id. at 83; 321; 332. The step test was a medical requirement of the Australian worksite. Id. To pass the test, an employee had to meet a target heart rate, which was 180 minus one’s age. ROI at 103; see also id. at 326. For a 60-year-old, such as Complainant, the target heart rate was 120. Id. at 103; 106. Complainant took the test three times: on June 27, 2019; July 15, 2019; and July 18, 2019. ROI at 288-90. On the June 27th test, Complainant’s resting blood pressure was 136/80 before he started the step test and 145/83 three minutes after he completed the test. ROI at 288. After one minute of stepping, his pulse was 132/minute and then 140/ and 146/minute, respectively, after two and three minutes of stepping. Id. A hand-written note on the test said: “Exceeded max heart rate, but did recover within [three] minutes.” Id. On the July 15th test, Complainant’s starting blood pressure was 134/82, and it was 156/81 three minutes after test completion. ROI at 289. Complainant’s pulse after one minute of stepping was 140/minute. Id. No other pulse rates are recorded. Id. Notes written on the test included: “Exceeded Max Heart Rate after [one] minute” and “Standard not met.” Id. On the July 18th test, Complainant’s starting blood pressure was 126/80 and his blood pressure three minutes after test completion was 125/74. ROI at 290. After one minute of stepping, Complainant’s pulse was 125/minute. Id. These comments were written on the test: “Exceeded Maximum HR [heart rate]. Test stopped prior to completion.” Id. Because of Complainant’s results on these step tests, taken in June and July 2019, he was unable to go on temporary duty overseas. ROI at 320. Complainant attested that he had passed the test on June 27, 2019. ROI at 277. He said he was not told or given any indication that he did not pass. Id. While Complainant does not dispute that he failed the tests on July 15, 2019, and July 18, 2019, he said that Health Tech did not allow him to rest to get his heart rate down at the July 15th test. Id. at 278. He added that Health Tech also commented that Complainant was too old for the test and that she could not pass it herself. Id. 2022001225 3 In addition to not being administered properly, Complainant submitted that the step test was discriminatory against older individuals. ROI at 279. In Australia, he added, the test is broken down for older people and the step is not as high. Id. at 278. The Australian test also uses a different formula, according to Complainant, by which he would have passed. Id. Complainant also believed that Chief Medical Officer failed him because he had a grudge against Complainant due to a heated debate they had during Complainant’s physical in April 2019. ROI at 279. Furthermore, Complainant said, he had a HIPAA (Health Insurance Portability and Accountability Act of 1996) violation against Chief Medical Officer. Id. Moreover, in terms of Chief Medical Officer making discriminatory comments about him, Complainant said Chief Medical Officer mentioned Complainant’s age during the testing process. ROI at 279. Complainant further declared that Chemical Engineering Technician (“Chem Tech”), a co- worker of his and a witness, heard Chief Medical Officer tell another doctor, during Chem Tech’s physical, that the step test was not for 60-year-olds. ROI at 279. Lastly, Complainant contended that Comparator (56) was treated more favorably, i.e., Comparator passed the test, but Complainant believed it was because Comparator was local and knew people in the clinic, and there was some “pencil action” when it came to passing her. ROI at 280. In essence, someone let Comparator slide by. Id. Chem Tech witnessed Comparator’s step test. He attested that Comparator did seem to be struggling during the test, but he could not say if Comparator’s results were falsified. ROI at 343. In terms of his own step test, taken in Aberdeen, Maryland, Chem Tech said he was able to rest during it, but he could not speak to the exact testing method that was used or the timing for when his results (namely, pre- or post-resting) were determined. Id. at 344. For the Agency’s part, Physician, of Occupational Health, attested: The 3-minute Step Test is a validated screening tool to assist with predictions related to an individual’s risk for developing heated [sic] related illness such as heat exhaustion or heat stroke, which can be fatal. Heat Stress monitoring programs rely almost exclusively on heart rate as a measure of heat stress during working times. The industry standard for protecting the workforce is set by the American College of Government Industrial Hygienist (ACGIH). It is recommended as a best practice to use 180 - age to establish the maximum heart rate of the individual. This is the most protective calculation of the maximum heart rate in terms of preventing potential death from heat[-]related illness. ROI at 333. 2022001225 4 When asked, Director of Chemical Biological Operations (“Director”), Complainant’s third-level supervisor, agreed that the step-test policy for individuals traveling on temporary duty to Australia is governed by OPEC Systems, Medical Support Plan, DSTG (Defense Science and Technology Group) Assessment and Investigation Project, Department of Defense. ROI at 322. As for Complainant’s claim that he initially passed the step test on June 27, 2019, Chief Medical Officer attested that he did not tell Complainant he passed that day. ROI at 313. Chief Medical Officer said he advised Complainant that he had not passed and indicated as much on the forms. Id. Chief Medical Officer admitted he then sought clarification from Medical Director in Aberdeen on the implications of a failed step test when the person tested does recover to a heartbeat below 110 after three minutes of rest. ROI at 313-14. Nurse in Aberdeen, who works with the Medical Director, sent Chief Medical Officer an updated version of the test protocol and told him that even if a person recovers, it is not a passing test. Id.; see also id. at 101-07. Physician affirmed this was the correct protocol. ROI at 332. With the updated protocol, Chief Medical Officer related, individuals did not need to step as fast; specifically, the rate went from 96 to 72 steps per minute. ROI at 314; see also id. at 101-07. Chief Medical Officer noted that, while the blank forms themselves do not reflect this change, Complainant was tested at the slower pace of 72 steps per minute and still failed the test. Id. As for the handling of Complainant’s test results, Chief Medical Officer denied having a grudge against Complainant and said he was just following the protocol he was given. ROI at 315. When asked the same question, Director underscored that this was a quantitative test. Id. at 322. When asked if Health Tech had let Comparator pass because she knew Comparator, Chief Medical Officer declared that Health Tech just administers the test and does not pass or fail anyone. ROI at 316-17. Health Tech, who administered Complainant’s test, said she did not refuse to let Complainant sit and let his heart rate go down before the test administered on July 15, 2019. ROI at 335-36. She added that clinic procedure always allows patients to rest before recording any heart rate reading. Id. According to Chief Medical Officer, people younger than Complainant failed the step test, administered under the controlling protocol. ROI at 317. Moreover, Chemical Operations Manager (“Manager”), Complainant’s first-level supervisor, noted that she and other management allowed Complainant to retake the test, because they wanted him to pass. Id. at 325. Manager also attested that she herself had taken the test a couple of times and had failed. Id. at 326. In rebuttal, Complainant emphasized that Chief Medical Officer and the test discriminated, though Complainant also stated that the Agency did not. ROI at 353. 2022001225 5 The record indicates that the step test was administered to five employees in addition to Complainant. ROI at 46. These five other employees were born between two to twenty-two years after Complainant was. Id. Of these five, all failed the step test the first time it was administered. Id. Two of these employees-one of whom was born in 1960 and one of whom was born in 1972-did pass the step test on a subsequent attempt. Id. Complainant also alleges, as discussed above, that Chief Medical Officer and Health Tech made ageist comments in the course of these medical tests. In response, Chief Medical Officer denies making disparaging remarks about older people. ROI at 316. He said he may have said to Complainant, as a statement of fact, that the tests are more difficult for older people. Id. Chief Medical Officer stated he did not believe the tests are discriminatory; rather, he believes they are designed to screen risk and prevent injury in an extremely dangerous environment. Id. Health Tech, for her part, denied making any comments about Complainant’s age. ROI at 336. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed.2 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, at Chapter 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”). 2 In his appeal of the Agency’s FAD, Complainant requests a hearing. The record shows that the AJ dismissed Complainant’s request for a hearing following Complainant’s submission of Voluntary Election Form indicating that he voluntarily withdrew his hearing request. As there is no allegation of fraud or duress, the hearing request was properly dismissed. 2022001225 6 Disparate Treatment A claim of disparate treatment is examined under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253. Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency’s action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). Assuming, arguendo, that Complainant established a prima facie case of age discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The Agency explained that the step test it used was a medical requirement of the Australian worksite. According to Agency officials, the test was administered, under a standard protocol, to all employees who wished to work as Operators at that Australian site. That particular test was meant to gauge an individual’s risk for developing heat-related illnesses, which can be fatal. The test it used, the Agency put forward, was designed to protect the workforce and was the industry standard. Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to demonstrate, by a preponderance of the evidence, that the Agency’s reasons were a pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its actions 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). We acknowledge that Complainant’s age, per the testing protocols, requires that he maintain a relatively lower heart rate during the test than a younger person would have to meet. 2022001225 7 However, it is undisputed that the same test was used by the Agency for those who wanted to perform temporary duty as an Operator at the Australian worksite. Complainant has not shown that individuals based at his facility who want to go on temporary duty are allowed to pass a different test-or to fail this one. Moreover, there is no indication that the Agency’s administration of the step test was based on Complainant’s protected class. As for the test itself, Complainant proffered no evidence that it is flawed. The record shows that employees younger than Complainant also failed the step test. Complainant has also said that he passed the June 2019 test and then was told he did not pass; that Chief Medical Officer failed Complainant due to a grudge and because Complainant filed a HIPAA violation against him;3 and that Health Tech would not let Complainant rest before recording his heart rate. Moreover, Complainant submitted, Chief Medical Officer and Health Tech allegedly made comments about Complainant’s age. Complainant also pointed to a Comparator who was allegedly treated more favorably in that Health Tech let Comparator slide, presumably by fudging Comparator’s numbers. We have considered Complainant’s contentions, the Agency’s responses, and the evidentiary record. We do not find the Agency’s explanations for its actions to be unworthy of credence. Accordingly, upon review of the record in its entirety, we find that Complainant has not shown by a preponderance of the evidence that the Agency’s explanation was pretext, designed to conceal discriminatory or retaliatory animus. Harassment To prove a harassment/hostile work environment claim, 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. 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 Sys., Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Here, Complainant has alleged that Chief Medical Officer mentioned Complainant’s age during the testing process. Complainant also alleged that Health Tech said that he was too old for the test and that she herself could not pass it. In reply, Chief Medical Officer stated he may have said the step tests were more difficult for older people, but he denied making disparaging comments about Complainant’s age. Health Tech, for her part, denied making any comment whatsoever regarding Complainant’s age. 3 Allegations of HIPAA violations are outside of the purview of the EEO process. See, e.g., Goldie S. v. Dep’t of Def., EEOC Appeal No. 0120171560 (July 12, 2017) (citations omitted). 2022001225 8 When the evidence is at best equipoise, a complainant fails to meet his burden of proof. See Lore v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his co-worker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Therefore, we find Complainant has provided inadequate evidence to support a claim that his treatment was the result of any protected status. CONCLUSION Based on a thorough review of the record and the contentions therein, including those not specifically addressed herein, we AFFIRM the Agency’s final 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 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. 2022001225 9 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. 2022001225 10 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 March 30, 2023 Date