Adrian W.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Mar 16, 2018

0120160332 (E.E.O.C. Mar. 16, 2018)

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

Adrian W.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120160332

Hearing No. 470-2014-00166X

Agency No. NPS-13-0319

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the Agency’s May 1, 2015 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§ 621 et seq. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Laborer, WG-3502-
04, at the Agency’s Mammoth Cave National Park in Mammoth Cave, Kentucky. Complainant
was a seasonal employee and generally worked during the Park’s busy season, which ran from
early-Spring to Labor Day. Complainant explained that he has a foot condition which affects his
walking, but he has not been diagnosed with any specific condition. Complainant claimed that
his foot condition did not cause any limitations, but his feet swell if he walks for a long period of
time and he wears orthopedic shoes.

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.
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In Summer 2012, Complainant’s second-level supervisor (S2) received several reports about
Complainant smoking in the cave. S2 instructed Complainant’s first-level supervisor (S1) to
remind Complainant that no smoking was allowed in the cave. S2 later received another report
about an employee with a walking stick smoking in the cave. Complainant was the only known
employee who used a walking stick. S2 directed S1 to speak to Complainant again and told S1
that if it could be proven that Complainant was smoking in the cave, he would not be brought
back to work. The Maintenance Mechanic Supervisor (MMS), who was not Complainant’s
supervisor, learned that S1 and S2 were considering not bringing Complainant back to work.
MMS attended church with Complainant’s brother and told Complainant’s brother that
management was terminating Complainant for smoking in the cave.

In March 2013, Complainant claimed that he had heard about rumors that he had been terminated
and would not be re-hired, and inquired with management officials about his employment status.
Management officials told Complainant that he had not been terminated and would be re-hired.
MMS stated words to the effect of, “You are lucky you are coming back. An employee who
continuously breaks park policies eliminates his right.” Complainant began employment for the
2013 season. Complainant claimed that S1 told him about the smoking complaints on May 5,
2013, and told him that seasonal employees had no rights and, “we didn’t have to bring you
back.”

In addition, on May 5, 2013, Complainant alleged that S1 told him that a younger co-worker was
brought back to work a month earlier than he was. Complainant acknowledged, however, that
the co-worker ended the season one month early to attend class and that he stayed a month
longer than his co-worker.

Complainant used a tree limb or branch as a walking stick and used the stick to collect litter in
the cave, which he kept on the stick until the end of the season. S2 received complaints about
the appearance of the stick and Complainant’s orthopedic shoes. S2 advised Complainant to
submit medical documentation if he needed a reasonable accommodation for the walking stick
and his non-standard shoes. Complainant provided a note from his doctor indicating his need for
the walking stick and shoes. Management allowed Complainant to wear the shoes he needed and
provided him an aluminum walking stick. Complainant complained that the walking stick felt
uncomfortable and unsafe. Management informed Complainant that he could use his previous
walking stick, but that he could not put anything on it. Complainant agreed and went back to
using his previous walking stick.

In June 2013, the Agency held an EEO and Diversity Training class for non-supervisory
employees. The Agency was given short notice about the training class and all employees were
not able to attend due to schedules and mission activities. Complainant and two other employees
were not able to attend because the training was held on their off-day. The Agency had
undergone a five percent budget cut and management had been ordered to cut overtime.
Management would have had to pay overtime to any employees who attended the training class
on their off-day.

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On August 19, 2013 (and amended on December 16, 2013), Complainant filed a formal
complaint alleging that the Agency discriminated against him and subjected him to a hostile
work environment on the bases of disability and age (56) when:

1. On March 11, 2013, Complainant received news that he had been fired for
smoking in the cave on the last day of the 2012 seasonal term and that he had
been written up several times for other offenses;

2. On March 13 and 14, 2013, Complainant was told that he had no rights as a
seasonal employee;

3. On May 5, 2013, Complainant learned that a younger employee was called back
to work a month before his call back;

4. On May 9, 2013, Complainant was told he could no longer use a walking stick in
the cave without a doctor’s excuse;

5. After October 6, 2012, to May 9, 2013, Complainant was slandered in
conversation by his supervisors with peers and co-workers; and

6. On June 20, 2013, Complainant was excluded from the EEO and Diversity
Training for non-supervisors.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing
on January 13, 2015. Following Complainant’s case-in-chief, the AJ granted the Agency’s
motion for a “directed verdict” and issued a bench decision.

In the decision, the AJ determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ found that there was no
evidence that the conduct at issue was based on Complainant’s protected classes. In particular,
as to claim (1), the AJ determined that Complainant learned from MMS that he had been fired;
however, that turned out to be false. With respect to claim (2), the AJ noted that it was true that
Complainant, as a seasonal employee, did not have full rights of a full-time employee.
Regarding claim (3), a younger employee was called back earlier than Complainant, but all the
seasonal employees had staggered starting times. As to claim (4), Complainant was told not to
use the walking stick because he had collected numerous attachments to it and he was asked to
adhere to the Agency’s uniform policy. Complainant was subsequently given an aluminum

2 The Agency dismissed an additional claim pursuant to 29 C.F.R. § 1614.107(a)(8) for alleging
dissatisfaction with previously filed complaint. On August 25, 2014, the AJ upheld the dismissal
of this claim. Complainant raised no challenges to the dismissal on appeal; therefore, the
Commission will exercise its discretion to only address those issues specifically raised on appeal.
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walking stick, but he objected to it on the ground that it was dangerous to him. Complainant was
then given permission to use the walking stick he preferred without anything attached to it. With
respect to claim (5), the AJ found that there was no evidence that Complainant was slandered by
supervisors based on his protected classes. Finally, regarding claim (6), Complainant was
excluded from the EEO training because of budgetary reasons and he was not the only employee
who was excluded. Management would have had to pay the employees overtime to attend the
training and management could not afford to do so.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination
or a hostile work environment as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that Agency management failed to follow rules and laws in its
treatment of him. Complainant claims that management’s harassment of him was ignored and
has “scarred [him] for life.” Complainant argues that no employee should be treated as he has
been and that management needs to be held accountable. Accordingly, Complainant requests
that the Commission reverse the final order.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held. See 29 C.F.R. § 1614.405(a).

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), Ch. 9, at § VI.B. (Aug. 5, 2015).

The Commission notes that there is no specific mechanism for a “directed verdict” in the EEOC
hearing process. However, under 29 C.F.R. § 1614.109(e), the AJ has the power to regulate the
conduct of the hearing, limit the number of witnesses where the testimony would be repetitious,
and exclude irrelevant evidence. The Commission finds nothing improper in the AJ’s actions
prior to the hearing, during the hearing, or in the issuance of a decision in favor of the Agency
after Complainant presented his case and without hearing the testimony of any witnesses on
behalf of the Agency.
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ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

Complainant asserted that based on his protected classes, management subjected him to a hostile
work environment. Complainant alleged several incidents of what he believed to be
discriminatory harassment. The Commission finds that substantial record evidence supports the
AJ’s determination that Complainant has not shown that he was subjected to conduct sufficiently
severe or pervasive to create a hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create
a hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory animus. The record reflects that the alleged incidents were more likely the result
of routine supervision, personality conflicts, and general workplace disputes and tribulations. For
example, with respect to claim (1), MMS testified that he told Complainant’s brother that it was
his understanding that Complainant was being fired for smoking in the cave. Hr’g Tr., at 175.
MMS testified that he witnessed a conversation between S1 and S2 in which they discussed not
bringing Complainant back because of the complaints; however, Complainant was brought back
for the next season. Id. at 179-80. MMS testified that he told Complainant’s brother because
they attended church together and he was only telling him based on his understanding of the
situation, not to be malicious. Id. at 181-82. Regarding claim (2), MMS stated that he told
Complainant that he was “lucky” to be coming back and that he “eliminated his right” because
he was trying to convey that any employee who broke the rules usually was not brought back.
ROI, at 167; Hr’g Tr., at 125.

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As to claim (3), the record reveals that Complainant was brought in after a younger employee
because Agency management staggered their start and end times to ensure sufficient coverage
during the busy season. Hr’g Tr., at 129. With regard to claim (4), management requested that
Complainant not use his walking stick because it was not sanctioned to be used in the cave and
had become a distraction for visitors in the cave. Id. at 158-59. Management requested that
Complainant submit medical documentation in support of his need for a walking stick, and
Complainant provided a doctor’s note. Id. at 83. Management provided Complainant with an
approved walking stick; however, Complainant felt that the walking stick was dangerous to him.
Id. at 86. As a result, management allowed Complainant to use the walking stick of his choice.
Id. at 94.

With respect to claim (5), Complainant referred to the smoking allegations and rumors of his
termination. S2 testified that he informed Complainant in March 2013, that he was going to
return to work, but that he had received reports that Complainant had been observed smoking in
the cave. Hr’g Tr., 203. S2 reminded Complainant of the Agency’s smoking policy, but took no
further action. Id. S2 testified that Complainant asked who reported him, but S2 declined to
identify the individuals because he did not intend to take any disciplinary action. Id.

Finally, as to claim (6), S1 affirmed that Complainant and two other employees were not brought
in for the training at issue because the class was held on their off-days. ROI, at 160. S1 added
that the Agency was operating under budget cuts and was unable to pay overtime to the
employees for them to attend the training. Id. Additionally, S1 noted that management had short
notice that the class would be provided and they needed to give employees two weeks’ notice to
allow them to change their schedules. Id.

After reviewing the record and considering the arguments on appeal, the Commission finds that
the AJ made reasonable credibility determinations, which are not contradicted by objective
evidence, and his factual findings are supported by substantial evidence. As a result, the
Commission finds that substantial record evidence supports the AJ’s finding that Complainant
has not shown that he was subjected to a discriminatory hostile work environment. Furthermore,
to the extent that Complainant is alleging disparate treatment with respect to his claims, the
Commission finds that he has not shown that the Agency’s reasons for its actions were a pretext
for unlawful discrimination. Accordingly, the Commission finds that Complainant has not
established that he was subjected to discrimination or a hostile work environment as to all claims
alleged.

Denial of Reasonable Accommodation

Finally, to the extent that Complainant alleges that the Agency denied him reasonable
accommodation, the Commission notes that an Agency is required to make reasonable
accommodation 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. To establish a denial of reasonable accommodation,
Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R.
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§ 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m);
and (3) the Agency failed to provide a reasonable accommodation. The Commission will
assume without deciding (for the purposes of this decision) that Complainant is an individual
with a disability.

Here, Complainant used orthopedic shoes and a walking stick while performing his duties. S2
learned that Complainant was wearing non-standard shoes and had items attached to the walking
stick he was using. ROI, at 152. Management had received complaints about the appearance of
and noise made by the walking stick. Hr’g Tr., at 200. Management requested that Complainant
submit medical documentation in support of his need for the walking stick and for the shoes.
ROI, at 159. Complainant provided a doctor’s note indicating that he should use a walking stick
and wear comfortable shoes. Management provided Complainant an aluminum, lightweight
walking stick and allowed Complainant to wear the orthopedic shoes he needed. Hr’g Tr., at
195. Complainant felt uncomfortable with the new walking stick and management allowed him
to use his previous walking stick without the items attached. Id. Complainant has presented no
evidence that the provided accommodations were ineffective. Therefore, the Commission finds
that Complainant has not established that the Agency failed to provide him with a reasonable
accommodation.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported by
the record.

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
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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).

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.

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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

March 16, 2018
Date