0120142575
12-02-2016
Clinton C.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clinton C.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120142575
Agency No. 12-00129-02614
DECISION
On July 1, 2014, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 3, 2014, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS-5, in the Security Department at the Agency's Naval Submarine Base New London in Groton, Connecticut.
On November 13, 2012, Complainant filed an EEO complaint alleging, in relevant part, that the Agency discriminated against him based on his disability (anxiety and stress), age (52), and reprisal for prior protected EEO activity under the Rehabilitation Act when:
1. Its Groton Occupational Health Clinic cleared him to carry a gun before he returned to work on June 3, 2012, but the Agency's Security Department did not authorize him do so until June 28, 2012; and
2. On June 3 - 7, 10, 12, 14, 17 - 21, and 24 - 28 he was denied routine overtime of 15 minutes each day before his shift starts.2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). It found no discrimination.
On May 17, 2012, Complainant called and then visited the Agency's Groton Occupational Health Clinic. In a medical note, the clinic's Supervisory Nurse Practitioner (hereinafter nurse practitioner) wrote that when Complainant called he described symptoms of an anxiety/panic attack and his speech was pressured and desperate sounding. In the note the nurse practitioner wrote that when Complainant arrived he was sweating, trembling and feeling "panicky," said he needed to get himself "gunned down" (return his gun and/or remove authorization to carry) and out of the area, and agreed to be off work two weeks pending initiation of counseling and an anxiety work up with the Employee Assistance Program. Report of Investigation (ROI), at 114 -115 (page numbers refer to bate stamps).
Complainant stated that when he returned to work on June 3, 2012, his authorization to carry a firearm expired, so he went to the firing range on June 5, 2012, and qualified. On June 7, 2012, the nurse practitioner wrote the following to the Director of Security, Complainant's fifth line supervisor. A civilian police officer [presumably Complainant] had a psychological diagnostic evaluation on May 21, 2012, by an outside provider who recommended that he start medication. Complainant was cleared for duty, and the Groton Occupational Health Clinic was going to put in a waiver request for the medication with the Security Department. OPNAVINST 3591.1F provides that psychiatric conditions requiring medications with a Selective Serotonin Reuptake Inhibitor (SSRI) that are determined to be stable by their prescribing provider shall normally be recommended for waiver by that provider. ROI, 134. The record reflects that if the Security Department approves the waiver, the employee may take the waived medication and carry a gun.
Complainant stated that on June 10, 2012, two others who like him qualified at the range on June 5, 2012, received authorization by the Director of Security to carry guns, but he did not.
The Master at Arms Chief (MAC), Complainant's second line supervisor, was involved in the authorization process for Complainant to carry a gun. Complainant stated that the MAC met with him on June 12, 2012, and asked questions related to how he was feeling. When asked during the EEO investigation what justification management had for delaying Complainant's authorization to carry a gun, the MAC responded that Complainant told him he was stressed out and nothing had changed. ROI, at 415. Complainant had a different version of events - the MAC also asked what changed at work and he responded nothing changed at work but he learned techniques to deal with the stress better. ROI, 285. Complainant stated that at that point the MAC told him they needed to see how his medication was working, and he responded that he was not prescribed the medication at this time and was not taking it.
On June 18, 2012, the Director of Security emailed the nurse practitioner that the Commanding Officer for the Submarine Base ordered that Complainant receive a fitness-for-duty examination (FFD) at the Occupational Health Clinic and be signed off by the doctor up there. She wrote that if the doctor concurs that Complainant is able to carry a weapon, that he is of no harm to anyone and can take medication to improve his mood, the Security Department could move forward with authorizing Complainant to carry a gun and this should take care of the waiver for the medication. ROI, 131. The nurse practitioner arranged for Complainant to get his FFD on June 20, 2012, with the practice he used for counseling. She forwarded to the practice Complainant's position description and functional requirements, and gave instructions for what to cover in the FFD.3
On June 20, 2012, a Board Certified Psychiatric Mental Health Nurse Practitioner/Advance Practice Registered Nurse with Complainant's practice responded to the Agency nurse practitioner that Complainant was not psychotic or delusional nor a danger to himself or others. She indicated that Complainant had situational anxiety for which she provided him an initial prescription that day for Sertraline (Zoloft)[an SSRI], and she would see him in a month to see how he was doing. She wrote that Complainant was fit for duty and to carry a firearm.
The Agency nurse practitioner wrote in a medical note that she was advised by the Director of Security on June 27, 2012, that the Commanding Officer of the Submarine Base read the June 20, 2012, communication and decided that before Complainant was authorized to carry a gun, to wait 30 days while he was on his medication and then have the prescriber clear Complainant. The nurse practitioner wrote in the medical note that Complainant was on Zoloft. ROI, 124.
Early in the morning on June 28, 2012, the nurse practitioner emailed the Director of Security that she spoke with Complainant who advised that he would not take the medication until receiving the waiver, the prescriber was aware of this, and he was under the impression from the prescriber that he did not need the medication to do his job but it may help smooth things out. A couple minutes later the Director of Security replied that she received word last night that the waiver was approved. Complainant was authorized to carry a gun the same day - June 28, 2012.
In his report, the EEO counselor wrote that the Director of Security relayed the following. While she was the Director, the Commanding Officer was the one making the decision on when she could issue Complainant his gun card (authorization to carry a gun). The reason for the delay after the Occupational Health Clinic cleared Complainant was because of the medication he was taking, and as soon as the Commanding Officer was satisfied Complainant was authorized to carry a gun.
An Agency Human Relations Specialist, who served as an advisor to Complainant's chain of command on employee relations issues stated that while Complainant was cleared by the Occupational Health Clinic to carry a gun, the Security Department conducts an independent evaluation on this. She wrote that the MAC asked Complainant if anything changed since he first went to the Occupational Health Clinic, and he indicated he was suffering from stress and the answer was no, and for this reason the MAC decided Complainant should not be authorized to carry a gun at that time. It was her understanding that the final determination is made by the Commanding Officer. She stated she got most of her information from the Director of Security.
The Agency's nurse practitioner opined that the Security Department unnecessarily delayed authorizing Complainant to carry a gun. She explained as follows. By letter dated June 4, 2012 (which is not in the record), Complainant's counseling practice cleared him to return to work with one day off a week, and he was cleared to carry a gun without medication (presumably by the Occupational Health Clinic). A waiver process was initiated in case Complainant wanted to take medication. The Director of Security told her Complainant could not be authorized to carry a gun until the waiver was granted, and she replied a waiver was only needed if Complainant decided to take Zoloft and he was cleared to carry a firearm. She told the Director of Security that Complainant did not need the medication to return to work, but could take it if he felt it would help him, and he did not take the medication. The Director of Security said the Commanding Officer approved the waiver on June 28, 2012. ROI, 370 - 371. Complainant echoed much of this, and said he told the MAC he was not taking medication.
In May 2011, the Director of Security sent an email to the union president that to ensure civilian police officers timely "Report to Roll Call armed and ready to work," they could arrive 15 minutes ahead of their schedule so they could get in line at the armory and arrive at roll call on time and not miss key information. The record reflects that police officers were paid overtime for the 15 minutes.
Agency officials explained that because Complainant was not authorized to carry a gun, he was not paid the 15 minutes of overtime on the dates he raised.4 Complainant countered that he still had to wait in line at the armory to get equipment - his radio and car keys. Complainant's first line supervisor stated that when he was not carrying a gun he did not receive the 15 minutes of overtime prior to the start of his shift because you don't receive it when you are in "gunned down status." ROI, 303. Complainant's third line supervisor identified a Police Officer who was not authorized to carry a gun for almost a year and did not receive overtime then because he did not "arm up." ROI, 314.
In its FAD, the Agency found that Complainant was not a qualified individual with a disability. Assuming for purposes of analysis that he was so, the Agency recounted management's reasons for taking the actions it did, which it found to be non-discriminatory. The Agency also found, because there was no documentation in the record from May and early June from Complainant's counseling practice, that it was not until June 20, 2012, that his practice advised the Agency nurse practitioner that it found him fit for duty and to carry a firearm.
ANALYSIS AND FINDINGS
We will assume, for purposes of analysis, that Complainant is an individual with a disability. The Complainant's position description requires that a police officer must qualify and maintain qualifications with service weapons, and when a police officer is temporarily restricted from doing so he will be detailed or temporarily reassigned until cleared by the appropriate medical professional to carry a weapon. ROI, 144. Complainant stated that after he returned to work on June 3, 2012, he got various assignments - riding in the "victor unit", going to the range, and being posted at the Main Gate. Complainant's third line supervisor stated that being posted at the gate was normal police work, and that the Security Director assigned him there. ROI, at 311. Another supervisor stated that after Complainant, no one was permitted to work at gate unless they were armed. ROI, 385.
A person is a "direct threat" if he poses a significant risk of substantial harm to the health and safety of himself or others which cannot be eliminated or reduced to an acceptable level by reasonable accommodation. The direct threat evaluation must be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. 29 C.F.R. � 1630.2(r). In essence, the Agency restricted Complainant from carrying a gun because it believed he may pose a direct threat.
We need not determine whether Complainant posed a direct threat. Agencies have a reasonable amount of time to make a determination on direct threat. In making this calculation, we note that Complainant continued to work throughout the period he was not authorized to carry a gun, including doing police work, making things less urgent. Further, Complainant acknowledges that when he returned to work his authorization to carry a firearm had expired, so he went to the firing range on June 5, 2012, to qualify, and two others who qualified there on the same day did not receive their authorization to carry a firearm until June 10, 2012. Hence, the time period at issue during which Complainant was not authorized to carry a gun is 18 days - from June 10, 2012 to June 28, 2012.
After reviewing the facts, as recounted above, we find that the Agency made its determination on direct threat within a reasonable amount of time. The Agency properly requested a FFD, and there was a reasonable delay while the Agency sorted out what to do about the medication issue.
To prevail on his disparate treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
The Agency articulated a legitimate, non-discriminatory reason for not paying Complainant 15 minutes of overtime each work day before the beginning of his shift during the period he was not authorized to carry a gun - this policy was only for people who were waiting in line to be armed. This reason is supported by the record.
The Agency nurse practitioner believed that the Director of Security was biased against Complainant. She explained that when she called the Director of Security to tell her the plan for Complainant's care for work related stress, she responded "Maybe I should just claim stress so I can be out of work." Complainant believed the MAC was biased, writing he made comments that he was slow for his age because of his back, and was getting older causing him to be confused and stressed out. We find that these comments are insufficient to show pretext. While the Director of Security allegedly said that maybe she should claim stress so she could get out of work, there is no indication in the record that Complainant was denied permission to take off from work or was in any way was disciplined for doing so. Also, while the MAC allegedly made age biased remarks to Complainant, the Agency - to include the Commanding Officer - took a reasonable amount of time in making a determination on direct threat.
Complainant has failed to prove discrimination on any basis.
The FAD is AFFIRMED.
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 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
December 2, 2016
__________________
Date
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 The Agency also defined as an issue that on May 17, 2012, Complainant was directed by the Supervisory Nurse Practitioner at its Groton Occupational Health Clinic to take two weeks off from work for job-related stress and anxiety. In his investigative affidavit, Complainant wrote he was not alleging discrimination or reprisal on this matter.
3 Meanwhile, by letter from Complainant's counseling practice the Agency nurse practitioner received on June 19, 2012, the practice advised there was no reason Complainant could not carry a gun and perform all the functions of his job.
4 The EEO Counselor wrote that the Director of Security relayed that on one of the dates in question Complainant was not at work.
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