Agency.

Equal Employment Opportunity Commission

Jun 14, 2019

0220180002 (E.E.O.C. Jun. 14, 2019)

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

Edgardo D.,1
Grievant,

v.

Kevin McAleenan,
Acting Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0220180002

Arbitration No. 1553198

DECISION

On November 29, 2017, Grievant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Arbitrator’s
November 1, 2017, decision concerning his grievances 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, Grievant worked as a Border Patrol Agent at
the Agency’s Gibraltar Border Patrol Station in Gibraltar, Michigan.

In February 2014, Grievant filed a claim for worker’s compensation asserting that his medial
condition had impacted him psychologically and physically. At the time, his physician
(Physician) stated that Grievant was diagnosed with Adjustment Disorder, which rendered him
totally disabled for an indeterminate amount of time.

On May 30, 2014, Grievant submitted a memorandum captioned as a request for a reasonable
accommodation. Grievant indicated his goal of returning to work and recovering from his
condition. Following treatment, the Physician agreed to allow Grievant to return to work

1 This case has been randomly assigned a pseudonym which will replace Grievant’s name when
the decision is published to non-parties and the Commission’s website.
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effective May 28, 2014, with reasonable accommodation to ensure his full recovery. Grievant
asked the Deputy Chief Patrol Agent (DCPA) to be temporarily assigned to the Detroit Station or
with the Sector Intel Unit at the Detroit Sector facility. Grievant indicated that the Physician
found that the Gibraltar Station was a trigger for his symptoms. As such, Grievant asked that he
not be returned to the Gibraltar Station while he is still being treated for his medical condition.

Grievant was provided with a temporary 60-day detail to Detroit on May 30, 2014. As his detail
was to end effective August 8, 2014, Grievant provided management with another note from the
Physician dated July 30, 2014. The Physician’s note stated that Grievant could return to work
full time as long as he is provided with the reasonable accommodation requested, namely a
temporary task for assignment within the Detroit area, a temporary assignment to the Detroit
Intel Unit, or a temporary assignment at the Detroit Border Patrol station. The Physician again
noted that the work environment at the Gibraltar station continued to trigger Grievant’s
symptoms. He asserted that with one of these accommodations, Grievant would be able to return
to his full potential without symptoms of his Adjustment Disorder.

Grievant submitted the Physician’s note by email dated August 1, 2014, to the Diversity and
Civil Rights Officer (Officer). The Officer responded on August 4, 2014, acknowledging
Grievant’s request for a reasonable accommodation. As such, the matter was forwarded for
assignment to a Reasonable Accommodation Facilitator (RA Facilitator). On August 5, 2014,
the RA Facilitator requested that Grievant fill out the Agency’s Request for Reasonable
Accommodation Form. Grievant provided the form to the RA Facilitator on August 7, 2014. He
noted that his detail would end the following day. Grievant was provided with a 30-day
extension of his detail by the DCBP.

After Grievant had submitted a reasonable accommodation request, the Agency determined that
the medical documentation was inadequate to make a determination if he was a qualified
individual with a disability. As such, the Agency sent Grievant for a psychological to a Fitness-
for-Duty Examination (FFDE). During the exam, Grievant was found both physically and
psychologically fit for duty. As such, his reasonable accommodation request was denied in April
2015.

On October 14, 2014, the Union filed the first grievance on Grievant’s behalf alleging that the
Agency unlawfully retaliated against him for prior protected EEO activity2 under the
Rehabilitation Act of 1973 when, on September 12, 2014, Grievant was directed to undergo the
FFDE by the Deputy Chief Patrol Agent (DCPA). Subsequently, on December 8, 2014, the
Union filed a second grievance alleging unlawful retaliation reprisal when, on October 21, 2014,
Grievant was directed to undergo a psychiatric FFDE by the DCPA.

2 Grievant indicated that he had been subjected to unlawful retaliation for requesting a reasonable
accommodation as well has prior protected EEO and union activity.
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Following the Step Three decisions by the Agency denying the grievances, the union invoked
arbitration. The Arbitrator held a hearing on March 15 and 16, 2017. Subsequently, he issued a
decision on November 1, 2017.

The Arbitrator found the DCPA provided legitimate, non-discriminatory reasons for his decision
to send Grievant for the FFDE in September 2014 and the psychiatric FFDE in October 2014.
Specifically, the Arbitrator found that Grievant formally requested reasonable accommodation in
August 2014 based on the email to the Officer. This request triggered the Agency’s reasonable
accommodation procedures. The DCPA determined that he required additional information. He
testified that he did not know what the Physician knew about Grievant’s position. The DCPA
believed he required information that could only be provided by an FFDE. As such, the
Arbitrator held that the DCPA provided legitimate, nondiscriminatory reasons for his actions.
He then found that the Union and Grievant failed to show that the DCPA’s reasons were
unreasonable or pretext for unlawful retaliation.

This appeal followed. The Agency argued that the Commission should affirm the Arbitrator’s
decision. The Agency noted that the Arbitrator held an extensive two-day hearing and extensive
briefing periods for the parties. Following all the evidence, the Arbitrator determined that the
Agency provided legitimate, nondiscriminatory reasons for its actions. Further, the Union and
Grievant failed to demonstrate that the reasons were pretext for unlawful retaliation.
Accordingly, the Agency asked that the Commission affirm the Arbitrator’s decision.

ANALYSIS AND FINDINGS

The Commission has jurisdiction over appeals from grievance decisions in limited
circumstances. EEOC Regulation 29 C.F.R. § 1614.401(d) provides that a grievant may appeal to
the Commission from a final decision of the agency, an arbitrator, or the Federal Labor Relations
Authority (FLRA) on a grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised, but requires the Grievant to
proceed on the discrimination claims under either the grievance process or the EEO process, but
not both. In these circumstances, the Commission will only review that portion of the decision
which pertains to the Grievant’s employment discrimination claim, as it does not have
jurisdiction over any alleged violations of a collective bargaining agreement. See 29 C.F.R. §
1614.301(a). Here, Grievant alleged that the Agency violated the terms of the collective
bargaining agreement when she was subjected to unlawful harassment. Accordingly, the
Commission properly has jurisdiction solely over Grievant’s appeal regarding his claims of
unlawful retaliation.

As an initial matter, we note for the first time on appeal, Grievant asserted that the Agency’s
action constituted an unlawful medical examination in a violation of the Rehabilitation Act. A
careful review of the record indicates that the Union failed to allege during the grievance process
or before the Arbitrator that the FFDEs were improper medical examinations pursuant to the
Rehabilitation Act. Therefore, we will not accept this claim raised for the first time on appeal.
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Complainant’s sole claim under consideration shall be his allegation of unlawful retaliation for
engaging in prior protected activity.

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Grievant to prevail, he or she must first 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Grievant 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. St.
Mary’s Honor Ctr. 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 Grievant 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, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No.
05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No.
05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May
31, 1990).

Upon review of the record, we find that the DCPA provided legitimate, nondiscriminatory
reasons for sending Grievant to the two FFDEs. The DCPA averred that he had medical
documentation which noted Grievant has a medical condition which caused anxiousness, fatigue,
and other physical and psychological symptoms. The DCPA was concerned that Grievant’s
medical condition had rendered him totally disabled at one point. Further, the DCPA noted that
the medical documentation provided no definitive prognosis. As such, he believed that he
needed additional information to ascertain whether Grievant could meet the medical standards of
his position as a Border Patrol Agent. The DCPA noted that a Border Patrol Agent is a law
enforcement officer position. Therefore, the DCPA requested that Grievant be sent to the
medical FFDE in September 2014 and a psychiatric FFDE in October 2014. Finding that the
Agency has met its burden, we turn to Grievant to show that the Agency’s reason was pretext for
unlawful retaliation. We find that Grievant has failed to do so. Accordingly, we find that the
Arbitrator properly determined that Grievant has not demonstrated that the Agency subjected
him to unlawful retaliation.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Arbitrator’s decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Grievant 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.
Grievant’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).
GRIEVANT’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
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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 Grievant’s Right to File a
Civil Action for the specific time limits).
FOR THE COMMISSION:
________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 14, 2019
Date