Byron E.,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 19, 2016

0120142622 (E.E.O.C. Aug. 19, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Byron E.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120142622 Agency No. ARRRAD12JUL02871 DECISION On July 10, 2014, Complainant filed an appeal from the Agency’s June 16, 2014, final decision 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. The Commission deems the appeal timely and accepts it for de novo review. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Welder assigned to the Red River Army Depot near Texarkana, Texas. Until March 24, 2012, he had been deployed in Kandahar, Afghanistan. He was hired as a limited-term employee for a period not to exceed two-years, unless extended. On November 7, 2012, Complainant filed an EEO complaint in which he alleged that the Chief of the Travel Division, who was his second-level supervisor (S2), the Depot Medical Officer (DMO) and a Physician’s Assistant (PA) discriminated against him on the bases of disability (residual effects of a back injury) and age (46) by allowing his term to expire on July 24, 2012, without placing him in a non-travel position. 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. 0120142622 2 At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the Investigative Report (IR), which included a fact-finding conference transcript (CT). The Agency also notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 description for Complainant’s Welder position included a 90 percent travel requirement and specified a number of possible locations, including Afghanistan, Iraq, and Kuwait. IR 82. In December 2011, following a routine physical examination, Complainant was deployed to Afghanistan. Three months later, on March 19, 2014, Complainant suffered a strain to his lower back. A sick slip dated March 19, 2012, indicated that Complainant had been advised to seek further medical care in the United States. As a result, he was sent back to the Depot after being released from his overseas assignment. IR 40, 47, 77; CT 12. After approximately three months, he recovered enough to be cleared to return to work without restrictions. IR 41-45. However, by memorandum dated June 14, 2012, S2 notified Complainant that his term would not be extended on account of his inability to redeploy overseas. IR 49, 51, 79; CT 20-22, 156-57. When asked by the EEO investigator why the Agency decided not to extend his term or find a job for him at the Depot, the DMO and the PA testified that when Complainant was deployed to Afghanistan, he had brought medications containing narcotics with him without informing the medical staff in violation of Agency policies, and that they had received documentation from the medical clinic in the operations theater that Complainant had been taking those medications for his back pain. They further testified that if they had known that Complainant had been taking narcotics, they would never have cleared him for deployment in the first place. IR 140-42, 164; CT 53-58, 69, 118-22, 125-28, 130, 132-33. Complainant admitted that he had taken those medications and was aware of the Agency’s prohibition against taking medications containing narcotics while being deployed overseas. CT 36-37, 41-42. Agency Regulation 690-3(330), which governs limited-term appointments provides such appoints are used to accomplish work that is of a temporary nature, and will typically last for one year, but can be extended to two years if necessary to complete the work. The regulation further provides that employees occupying temporary positions who are to be separated will receive notice approximately 30 days before their not-to-exceed date. IR 89-90. Complainant testified at the fact-finding conference that he understood these conditions. CT 13-15. An SF- 50 dated January 26, 2012, identified Complainant’s not-to-exceed date as July 24, 2012, and a subsequent SF-50 documenting the expiration of Complainant’s term appointment identified the effective date of the action as July 24, 2012. IR 93-94. 0120142622 3 ANALYSIS AND FINDINGS 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”). The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on his discrimination claim, Complainant would have to show that S2, the DMO, or the PA were motivated by unlawful considerations of his age or disability in connection with their decision to allow his term appointment to expire without placing him in a non-travel position.2 See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In circumstantial-evidence cases such as this, Complainant can establish the existence of a discriminatory motivation by presenting evidence tending to show that the reasons articulated by S2, the DMO, and the PA for not renewing his term appointment and placing him in a non- travel position were pretext, i.e., not the real reason but rather a cover for age and disability discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). When asked by the investigator why he believed that age and his alleged disability were motivating factors in the incidents at issue, Complainant identified a number of comparative employees who he alleged were given extended terms and jobs at the Depot that did not entail travel. He admitted, however, that none of them were Welders, that they were all close in age to him, and that he was unaware of their disability status. CT 24-32. Beyond his own assertions, however, Complainant has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by S2, the DMO or the PA, or which call their veracity into question. In fact, their testimony had been corroborated by that of other officials, including the then-current Travel Division Chief and his successor, and the Injury Compensation Program Administrator. CT 74-78, 98-99, 105, 107, 109, 153-57. We therefore find, as did the Agency, that Complainant has not established the existence of an unlawful motive on the part of S2, the DMO, or the PA in connection with the Agency’s decision not to extend Complainant’s term appointment beyond July 24, 2012, or to reassign him to a position at the Depot. 2 When asked by the investigator if he had ever asked for a reasonable accommodation, Complainant replied that he had not. CT 48-49. Accordingly, Complainant’s claim of disability discrimination will be treated as a disparate treatment claim. 0120142622 4 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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 0120142622 5 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 19, 2016 Date