Tad S.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Sep 25, 2019

2019003247 (E.E.O.C. Sep. 25, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tad S.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 2019003247

Hearing No. 480-2017-00142X

Agency No. FSIS01600431

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 March 4, 2019 final order
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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Veterinary Medical Public Health Officer, GS-11, at the Agency’s Alameda District/Office of
Field Operations facility in Albany, California.

On May 3, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of disability (kidney/dialysis) when he was issued a Letter of
Termination during his probationary period dated February 5, 2016.2

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 Complainant also appealed his removal to the Merit Systems Protection Board (MSPB), which
denied jurisdiction over the matter on March 28, 2016.
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At the conclusion of the investigation into his complaint, the Agency provided Complainant with
a copy of the report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing.

The AJ assigned to the case granted the Agency’s September 28, 2017 motion for a decision
without a hearing and issued a decision by summary judgment in favor of the Agency on
February 20, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

The instant appeal followed.

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, issuing a
decision without holding a hearing is not appropriate.

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. Here, Complainant
has failed to point with any specificity to particular evidence in the investigative file or other
evidence of record that indicates such a dispute.

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.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).

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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 Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency
must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine,
450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden 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 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 Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that
Complainant established his prima facie case of discrimination.

As an initial matter, we find that Complainant is a person with a disability within the meaning of
the Rehabilitation Act as he undergoes daily dialysis for his kidneys.

We next find that the Agency articulated legitimate, non-discriminatory reasons for its decision.
The February 5, 2016 Notice of Removal (Notice) stated that Complainant was being removed
during his probationary period for failing to report for duty on several dates, not following the
Agency’s established call-in policy, and being delinquent in paying his government travel card.
We note that Complainant did not deny that these incidents occurred. Management witnesses
explained that attendance was very important to this position because, when inspecting poultry
plants, a veterinarian’s presence was needed. A poultry plant cannot operate if inspection
personnel are not present at the facility to provide the inspection. As noted by the AJ,
Complainant admitted that his conduct and performance on the job was “unsatisfactory.”

The Agency having articulated a legitimate, nondiscriminatory reason for its action, the burden
of proof shifts back to Complainant to establish that the Agency’s articulated reason is a pretext.
Following a review of the record, we find that Complainant has failed to meet this burden.
Complainant has not denied the allegations supporting his termination. Instead, he offers
excuses for his unsatisfactory attendance asserting that because he required dialysis on a daily
basis, he was often tired, his legs sometimes cramped, and he often slept through his alarm clock.
First, this fails to explain his failure to follow the Agency’s call-in policy or his delinquency in
paying his government credit card. Moreover, regarding his attendance, although management
officials gave him information for requesting reasonable accommodation and sought to engage in
the interactive process, Complainant admits he did not request any accommodation by failing to
complete the necessary paperwork or pursue the matter.
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We therefore do not find that Complainant was denied a reasonable accommodation or otherwise
prove he was discriminated because of his disability.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the finding that Complainant was not discriminated
against as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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).
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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

September 25, 2019
Date