Erica M.,1 Complainant,v.Kevin McAleenan, Acting Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Aug 7, 2019

0120181655 (E.E.O.C. Aug. 7, 2019)

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

Erica M.,1
Complainant,

v.

Kevin McAleenan,
Acting Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120181655
Agency No. HS-TSA-26831-2016

DECISION

On April 18, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 20, 2018, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether the Agency erred in finding that Complainant did not establish that
he was subjected to discrimination, harassment or was denied a reasonable accommodation.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal
(FAM), I-Band at the Agency’s Miami Field Office in Miami, Florida. On November 11, 2016,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of disability (back injury, spinal stenosis) and reprisal for prior protected EEO when:

l. In 2009, he was denied a pay raise.
2. In October 2015, he was denied a pay raise.

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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3. From July 2016, and continuing, he has been denied the interactive process
regarding his reasonable accommodation request.
4. Between July 2016 and August 2016, he was placed on light duty status.
5. In August 2016, he was issued a Letter of Counseling.
6. On, or around, October 12, 2016, he received his Fiscal Year 2016 annual appraisal,
which contained an overall score of 3.44, rendering him ineligible for a pay raise.

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. In accordance with Complainant’s request, the
Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

Specifically, the Agency found that assuming, arguendo, Complainant established a prima facie
case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons
for its actions, namely, that with respect to claim no. 1, Complainant was denied a pay raise in
2009 because he was disciplined during that year. He received an “Unacceptable Performance and
Conduct,” citation because, during the boarding process of his assigned mission, Complainant was
randomly selected by Agency personnel for pre-boarding screening, to which Complainant stated,
‘‘No,” in the presence of passengers. Complainant did not report the incident to management, as
was required under Agency policy. According to Agency policy, Complainant was not eligible
for a pay increase because he was subjected to discipline during the 12-month period in question.
The Agency explained that if an employee received discipline, they could not receive any increases
or cash awards in the year that the discipline was issued, including the year it was adjudicated,
even if it extended into the next year.

Regarding claim no. 2, Complainant was denied a pay raise in 2015, because he was subjected to
a one-day suspension after “leaving work early, falsifying his time and labor report, and not doing
duties [that] he was directed to do by his supervisor.” Therefore, according to Agency policy, he
again was not eligible for a pay increase.

With respect to claim no. 5, management maintained that the Office of Professional Responsibility
issued Complainant a Letter of Counseling (LOC) because he failed to notify Medical that he was
unavailable to fly a major planned mission prior to the mission. Complainant argued that he
submitted his request for a reasonable accommodation on June 22, 2016, the date of the mission.
He indicated that he alerted his supervisor that if he was not the person who should have received
the request for accommodation then he should be notified so that it could be passed along. The
Agency explained, however, that the LOC was issued because Complainant did not notify the
Agency prior to the scheduled mission project.

Regarding, claim no. 6, management indicated that Complainant did not receive a pay increase in
2016, because his performance score fell below the pay increase level. Management explained
that when looking at the performance ratings of its 18 employees, it was discovered that there were
too many people in the highest rated category, so management was ordered to lower the ratings to
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distribute them across all categories. Several employees were lowered from the top category to
the middle category, and the bottom two employees were moved to the lower category. Out of the
18 employees, the bottom two employees were dropped to the Achieved Expectations category.
Complainant was employee number 17, with an original score of 3.6, but his score was dropped to
3.44. Employee number 18 had an original score of 3.5 and his score was also lowered to 3.44.

With regard to Complainant’s denial of a reasonable accommodation claim, the Agency assumed,
without deciding, that Complainant was a qualified individual with a disability. Complainant
maintained that the Agency did not engage in the interactive process. Complainant requested the
following accommodation: (l) removal from international travel rosters, (2) eliminating missions
requiring overnight stays, and (3) assignment to the presently open Assistant Operations Officer
position, which he had already submitted an application, for the stated period of six months,
allowing him to undergo “intensive, consistent, rehabilitation efforts.” Complainant’s doctor,
however, determined that Complainant could not perform all of the essential duties of his position
with or without a reasonable accommodation. As such, the Agency found that Complainant was
not entitled to an accommodation but nevertheless they offered him a light duty position.

With respect to claim no. 3, the Agency argued that contrary to Complainant’s argument, it did
engage in the interactive process. The Agency explained that Complainant submitted a request for
reasonable accommodation on June 22, 2016. On June 24, 2016, the Agency cleared Complainant
to perform light duty while it waited for Complainant’s medical documentation. On June 28, 2016,
Complainant’s doctor indicated that Complainant was unable to perform the essential functions of
his position. Thereafter, the Agency allowed Complainant to continue his light duty work
assignment, which required no travel, so that he could attend physical therapy as he requested.

With regard to claim no. 4, the Agency indicated that because Complainant’s doctor indicated that
he could not perform the essential functions of his position, Complainant was offered light duty.
The light duty position, which was a receptionist position, was shared by other employees on light
duty, therefore, a forty-hour work week was not available. Complainant maintained that he had to
use leave to make up for the pay that he lost working fewer hours. The Agency explained that the
flexibility that the light duty position offered him afforded Complainant the ability to attend
physical therapy for the six months that he had requested. The Agency maintained that after six
months, Complainant’s doctor cleared him for return to full duty. As such, this was an effective
accommodation. The Agency found that Complainant did not demonstrate that the Agency’s
reasons were pretext for discrimination or that discriminatory animus was involved.

Finally, with regard to Complainant’s harassment claim, the Agency’s FAD found that
Complainant did not demonstrate that discriminatory animus was involved with regard to any of
the above incidents. Moreover, the Agency determined that the incidents were not severe or
pervasive enough to establish a hostile work environment. Thus, the FAD found that Complainant
did not prove that he was subjected to discrimination or harassment as alleged.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that he withdrew his rebuttal to the discipline he was charged
with based on the word of the Special Agent in Charge. He claims that he was promised that if he
did not file a grievance regarding the matter, all would be forgotten, and he would receive his pay
raise.

Further, Complainant maintains that he was given 12 hours of light duty which forced him to use
28 hours of combined sick and annual leave to keep normal income. In time, he maintains that
this caused him in practical terms to be unemployed. He was forced to go back to his doctor to
have him indicated that he was good enough to return to duty. Finally, Complainant indicates that
a contract employee was treated more favorable than he was, as the contract employee did
something that Complainant knows he would have been disciplined for, but the contractor was not
disciplined.

The Agency, among other things, requests that its FAD be affirmed.

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”).

Disparate Treatment, Claims 1, 2, 5, and 6:

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
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acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume arguendo that Complainant
established a prima facie case of discrimination as to all bases, the Agency articulated legitimate,
nondiscriminatory reasons for its actions, as was discussed above. We find Complainant did not
demonstrate, and the evidence does not show that the Agency’s reasons were pretext for
discrimination.

Reasonable Accommodation Claims 3 and 4:

The Commission’s regulations require an Agency to make reasonable accommodation for the
known physical and mental limitations of a qualified individual with a disability unless it can show
that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A
qualified individual with a disability is an “individual with a disability” who satisfies the requisite
skill, experience, education and other job-related requirements of the employment position such
individual holds or desires and, with or without reasonable accommodation, can perform the
essential functions of such position. 29 C.F.R. § 1630.2(m).

Essential functions are the fundamental job duties of the employment position the individual with
a disability holds or desires. 29 C.F.R. § 1630.2(n). A function may be essential, for example,
because the reason the position exists is to perform that function or there are a limited number of
employees available among whom the performance of that job function can be distributed. Id. at §
1630.2(n)(2). Evidence of whether a particular function is essential includes the employer’s
judgment as to which functions are essential; written job descriptions; and the amount of time
spent on performing that function. Id. at § I630.2(n)(3).

At the outset, we note that the Commission’s precedent establishes that an agency cannot be held
liable solely for a failure to engage in the interactive process. Liability for a failure to engage occurs
when the failure to engage in the interactive process results in the agency’s failure to provide
reasonable accommodation. Broussard v. United States Postal Service, EEOC Appeal No.
01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). The
sole purpose of the interactive process is to facilitate the identification of an appropriate reasonable
accommodation, and an agency’s failure to engage in this process does not give rise to a separate
cause of action because the interactive process is not an end in itself. Broussard, EEOC Request
No. 05A30114.2

Assuming, for the purposes of this decision only, that Complainant is an individual with a
disability, we also find that he has not shown that he was denied a reasonable accommodation.

2 In stating the above, we are not necessarily accepting Complainant’s assertion that the Agency
did not engage in the interactive process but are merely stating that a failure to do so does not
constitute a separate violation in itself.
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The record shows that Complainant was offered light duty even before his doctor submitted
medical documentation. Moreover, once medical documentation was submitted, it showed that
Complainant could not perform the essential functions of his position either with or without an
accommodation. As such, the Agency was not under an obligation to provide an accommodation
to Complainant, because he was not qualified; nevertheless, it allowed Complainant to continue
his light duty assignment until he could return to full duty. The Commission has long held that a
Complainant is not entitled to the accommodation of his/her choice. Instead, what is required is
that the accommodation offered was effective. In this situation, we believe the accommodation
offered by the Agency was effective as it allowed Complainant time to improve his medical
condition and return to work.

Harassment:

We also find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993) that Complainant’s claim of hostile work environment must fail. See Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding
of a hostile work environment is precluded by our determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory animus.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

With respect to Complainant’s contentions on appeal, we find that other than Complainant’s
conclusory statements, he failed to provide any evidence that showed that he was subject to
discrimination or was denied a reasonable accommodation.

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not demonstrate
that he was denied a reasonable accommodation, or that he was subjected to discrimination or
harassment.

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
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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. The court has the sole

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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 7, 2019
Date