U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Will K.,1 Complainant, v. Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020000318 Hearing No. 480-2017-00390X Agency Nos. 9H1C13010RF19 9H1C13010R DECISION On September 13, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 16, 2019 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. During the period at issue, Complainant worked as a Custodial Worker at the Agency’s Force Support Squadron, Nellis Air Force Base in Las Vegas, Nevada. 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 2020000318 On August 1, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against him based on race (African-American), disability, and in reprisal for prior EEO activity (current EEO complaint) when2: a. on or about September 10, 2010, and on or about December 3, 2012, management did not treat him as well as other employees following his on-the-job injuries; b. in August 2012, his hours were cut; c. on January 14, 2013, management asked him to attend a “Fit for Duty” meeting to consider if he could continue to work; and d. on May 13, 2013, he was terminated from his position of Custodial Worker.3 After an investigation of the complaint, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On June 12, 2019, the AJ issued a decision by summary judgment in favor of the Agency. Based on this evidence, the AJ concluded no discrimination was established. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see 2 For ease of reference, the Commission has re-lettered Complainant’s claims as claims a - d. The record reflects that claim d was later amended to the instant formal complaint. 3 The record reflects that on January 14, 2013, the Agency issued a final decision dismissing the instant formal complaint for failure to state a claim. On appeal, the Commission reversed the Agency’s dismissal and remanded the matter to the Agency for further processing. Complainant v. Department of Air Force, EEOC Appeal No. 0120140935 (April 15, 2016). Following the Commission’s decision, the Agency processed the remanded claims in accordance with 29 C.F.R. § 1614.108, which is now the subject of the instant appeal. 3 2020000318 also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment A claim of disparate treatment is examined under the three-party 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). In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. During the relevant period Complainant worked as a at the Agency’s FSS, Nellis Air Force Base in Las Vegas, Nevada. The Maintenance Supervisor was Complainant’s first-line supervisor and the Lodging Manager was Complainant’s second-line supervisor. Complainant identified his disabilities as epilepsy and on-the-job injuries. Complainant’s position had physical requirements, including frequently lifting and moving objects that weighed 40 pounds or more, as well as frequent walking, bending, lifting, and stooping. As a non-appropriated fund (NAF) employee, Complainant was guaranteed 20 hours a week and limited to a maximum of 40 hours a week. Regarding claim a, Complainant asserted that on or about September 10, 2010, and on or about December 3, 2012, management did not treat him as well as other employees following his on-the- job injuries. However, the Maintenance Supervisor (Caucasian) explained that during the relevant period Complainant was placed on light duty by his doctor and “we have no light duty work in this 4 2020000318 section so we brought him in for his guaranteed hours and tried to find things to keep him busy.” The AJ noted that while Complainant named three other employees he claimed were treated more favorably, these employees either did not have the same restrictions or were in different positions than Complainant. Regarding claim b, Complainant alleged that in August 2012, his hours were cut. Specifically, Complainant claimed that his hours were reduced from 35 hours a week to 17 hours a week which were restored to 20 hours a week after he complained to the union. The hours were then changed to 35 hours before December 2012, when they were reduced again to 20 hours a week. The record shows Complainant had been working under medical restrictions imposed by his doctor until he was released to return to full duty. According to the Manager, she assisted in locating tasks for Complainant within his restrictions, which included, increasing his hours during a specific project and being assigned work at the base hobby shop/skills development center. On September 12, 2012, Complainant provided a report from his doctor to the Human Resources (HR) Specialist. On September 18, 2012, the HR Specialist asked Complainant whether he was requesting to return to duty full duty and whether he was seeking a reasonable accommodation for a disability, and made the following request: “Please advise this office as to whether or not you are claiming a disability, please advise this office as to whether or not you require…if you are not claiming a disability please advise this office as to whether or not you are requesting to return to full duty.” Complainant responded that “at no time have I requested any accommodation outside my accepted job-related injuries.” As Complainant did not answer her questions, the HR Specialist queried again, “First, do you have a permanent disability of any kind? And the second question, if you do claim a permanent disability, do[ ] you desire accommodations?” She concluded that if she did not receive a response, she would assume that Complainant did not have a permanent disability and that he did not require accommodation. Complainant did not respond. Regarding claim c, Complainant alleged that on January 14, 2013, management asked him to attend a “Fit for Duty” meeting to consider if he could continue to work. As previously mentioned, Complainant’s position included physical requirements such as frequent lifting and moving objects that are 40 pounds as well as frequent walking, bending, lifting, and stooping. In a memorandum dated January 11, 2013, the supervisor recounted Complainant’s seven on-the-job injury claims and the resulting various medical restrictions. The supervisor also stated, “at this time, we have conflicting medical documentation to determine your physical ability to meet the demands of your position as a Custodial Worker.” Therefore, the supervisor requested Complainant “with an appointment but also informed him that he could obtain medical documentation from a provider of his choice.” The Manager stated that while she did not have a role concerning the “Fit for Duty” meeting, she expressed her concerns with the supervisor and HR office “that it appeared that each time [Complainant] was released from light or restricted duty by his physicians, he would reinjure himself in a short period of time and asked what course of action could be taken to safeguard 5 2020000318 against further injury to the employee.” Furthermore, the Manager stated that she “was concerned for the health and well-being of the employee.” Regarding claim d, Complainant claimed that on May 13, 2013, he was terminated from his position of Custodial Worker. He claimed his removal was reprisal for filing an EEO complaint. The record shows that Complainant was approved for and paid to go on a Temporary Duty (TDY) for training on official time from April 9, 2013 to April 13, 2013. However, the Manager learned that Complainant did not attend the TDY for training and he was not present for duty at his regular tour of duty. Complainant did not notify his supervisor or Manager regarding his nonattendance or need to request alternative leave. While it appears that the union president had told Complainant that “he was cleared” to meet with “his worker’s compensation attorney, rather than attend the training”, the union president was not in Complainant’s supervisory structure. On April 26, 2013, the Manager issued Complainant a Notice of Proposed Suspension for misuse of official time and receipt of pay under false pretenses. Complainant attempted to submit an untimely request for leave for the subject period, using annual leave, which was disapproved for timeliness. On May 13, 2013, the Manager issued Complainant a Notice of Decision to remove him from agency employment. The record contains a copy of the April 25, 2013 Notice of Proposed Removal in which the Manager determined that Complainant failed to inform his supervisor “of the change in your status or plans and received pay from the government for official time. This misuse of approved official time was a result of falsification, exaggeration or concealment of material facts in connection with your time card, which is an official document. Your actions also constitute a theft of government funds due to the receipt of 35 hours of pay under false pretenses. Additionally, you failed to follow established leave procedures and accordingly, you had unapproved absences in excess of 8 hours.” Beyond his bare assertions, Complainant failed to produce evidence to establish that these proffered legitimate explanations from management for the disputed actions were actually pretext designed to mask discriminatory or retaliatory animus. Harassment/Hostile Work Environment To prove his harassment 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 his protected basis - in this case, his race, disability, and prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, as already discussed in detail above, Complainant simply has provided no evidence to support his claim that his treatment was the result of his race, disability, and prior protected activity. Complainant’s claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 6 2020000318 Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified individual with a disability. Here, Complainant claimed that management failed to provide him with a reasonable accommodation. However, the evidence shows that the Agency did accommodate Complainant’s medical restrictions on a long-term basis, providing him with at least 20 hours per week of light duty work and more when it was available. When faced with conflicting medical information, the Agency asked Complainant to provide clarifying information and to identify with specificity the accommodations he needed to perform in his position. Complainant did not adequately respond to these requests. In sum, we find the evidence of record does not support a finding that the Agency violated the Rehabilitation Act by denying Complainant reasonable accommodation. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that unlawful discrimination and retaliation occurred. 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 7 2020000318 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). 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 August 31, 2020 Date
