Hung P.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

0120181630 (E.E.O.C. Sep. 30, 2019)

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

Hung P.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120181630

Hearing No. 480-2015-00374X

Agency No. HS-ICE-00868-2014

DECISION

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 29, 2018, final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. § 2000e et seq., 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 Agency’s final decision.

BACKGROUND

Complainant worked as a Senior Field Training Officer, GS-1801-13, at the Agency’s
Enforcement and Removal Operations (ERO) Field Office in San Diego, California. On May 24,
2014, Complainant filed an EEO complaint in which he alleged that the Field Office Director
(FOD), discriminated against him on the bases of race (African-American), sex (male), disability
(knee replacement), age (46), and in reprisal for prior protected EEO activity when:

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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1. On February 27, 2014, Complainant was injured while participating in an on-the-job
training exercise, and continuing, and the San Diego Field Office Director (FOD) had
denied his request for a firearms qualification waiver; and

2. On March 20, 2014, the FOD placed Complainant on administrative duty, decertified
him from receiving administratively uncontrollable overtime (AUO), and instructed
him to surrender his weapon, badge, credentials, and body armor.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. Complainant timely requested a hearing but
subsequently withdrew his request. Consequently, 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.

Incident (1): Complainant averred that he sought a waiver to the firearms qualification requirement
because he had sustained a physical injury to his left shoulder on February 27, 2014, which caused
him to be unable to participate in his quarterly firearms qualification training. However, when
asked about the alleged denial by the EEO investigator, Complainant responded that he never
submitted a written request for a waiver. Rather, he asked his immediate supervisor, the Assistant
Field Office Director (AFOD) about the waiver process. Complainant maintained that the FOD
instructed the AFOD to impede his request for a firearms qualification waiver and deny him
additional assistance. IR 80.

The FOD averred that although he knew of Complainant’s shoulder injury, he did not recall ever
receiving a firearms qualification waiver from him. IR 95-96. The AFOD confirmed that
Complainant never requested the waiver but did ask about the waiver process, and that he, the
AFOD, referred him to the Senior Firearms Instructor (SFI). IR 102. The SFI also averred that he
did not receive a waiver request from Complainant, that Complainant also asked him about the
waiver process, and that he advised Complainant that it was rare for a waiver to be granted when
the injury involves an area of the body that impacts one’s ability to handle firearms, such as the
hand, arm, or shoulder. IR 107.

Incident (2): On March 5, 2014, following his shoulder injury, Complainant was placed on light
duty. The notice informing Complainant of the decision indicated that the move was necessary
because his physician had placed weight-lifting restrictions on him while at work.Complainant
averred that on March 20, 2014, he was informed that he was no longer eligible to receive
administratively uncontrollable overtime (AUO) and that he would have to surrender his firearms,
body armor, badge, and credentials until such time as he was able to return to full duty. He further
averred that while the AFOD presented him with the two notices, it was the FOD who made the
decision. IR 80, 82-84. The FOD averred that on March 18, 2014, after consulting with the
Employee and Labor Relations Office, he signed the March 20, 2014 letter informing Complaint
that he would remain in light duty status until medical documentation indicated that he could return
to full duty status. IR 96, 573.
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The FOD, along with the AFOD and the SFI averred that the actions taken were consistent with
Agency firearms and personnel policies and were standard practice at Agency field offices. IR 97-
98, 103-04, 108, 568-70, 573.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the record demonstrates that the Agency’s actions were
based on his protected classes. Complainant argues that he was told that he needed to submit a
firearms qualification waiver along with his medical records despite that this was not the Agency’s
previous practice when he worked in Washington D.C. Complainant contends that he was able to
perform all the duties of his position and the Agency did not have to place him on administrative
leave, decertify him from receiving AUO, and force him to surrender his credentials and
equipment. Complainant claims that the Agency’s inconsistencies are a clear indication of pretext.
Accordingly, Complainant requests that the Commission reverse the final decision.

ANALYSIS AND FINDINGS

Standard of Review

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”).

Denial of Reasonable Accommodation

Under the Commission's regulations, an agency is required to make reasonable accommodations
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. We will assume arguendo that Complainant is an individual with a disability under the
Rehabilitation Act.

Here, the record indicates that Complainant suffered a work-related shoulder injury.
Complainant’s doctor placed him on a two-pound lifting restriction for three to six months in
March 2014, which prevented him from participating in firearms qualification. The record
indicates that Complainant inquired with AFOD about the process of obtaining a wavier for
firearms qualification and was advised to speak with SFI. Complainant discussed the waiver
process with SFI who advised him of the process to submit a waiver request through his chain-of-
command. Complainant acknowledged that he never submitted a waiver request.
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Thus, the Commission concludes that Complainant was not improperly denied a waiver for
firearms qualification as a reasonable accommodation.

After reviewing Complainant’s submitted medical documentation, management officials decided
to place Complainant on light duty in March 2014, based on his physical restrictions and his
inability to maintain his firearms certification. The FOD issued Complainant a memorandum
informing him that he would be placed on light duty until he returned to full duty and that his
duties would be administrative in nature. Further, as Complainant failed to complete firearms
certification or request a wavier, his Agency-issued firearm, badge, and credentials were revoked
as a result. After being placed on light duty, Complainant wished to continue receiving AUO
while receiving continuation of pay under workers’ compensation. Complainant initially remained
certified on AUO under the Agency’s polices. Complainant’s workers’ compensation claim was
subsequently denied, and Complainant was thus no longer eligible under the Agency’s policies
and procedures. Based on Complainant’s inability to perform the full duties of his position
(including carrying a firearm), Complainant was decertified from receiving AUO once he was no
longer eligible.

While Complainant may not have received the accommodation he preferred, we have held that
protected individuals are entitled to an effective reasonable accommodation, not necessarily the
accommodation of the individual's choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No.
01931005 (Feb. 17, 1994). Complainant has not offered any evidence that the accommodations
provided to him were ineffective. Accordingly, the Commission finds that the Agency did not
deny Complainant reasonable accommodation in violation of the Rehabilitation Act.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). His first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576
(1978). The prima facie inquiry may be dispensed in this case, however, since the FOD articulated
legitimate and nondiscriminatory reasons for his actions on February 27 and March 20, 2014. See
U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). The FOD averred
that he never received a firearms qualification waiver request from Complainant, that when
Complainant was taken off active duty due to his shoulder injury, he was no longer eligible for
AUO after forty-five days, and the Agency’s policies pertaining to firearms and injured personnel
required that he surrender his armor, weapons, badge and credentials.

To ultimately prevail, Complainant must show that the explanations put forth by the FOD were a
pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In other
words, Complainant would have to prove, by a preponderance of the evidence, that the FOD was
motivated by unlawful considerations of his race, sex, disability, age, or protected EEO activity in
not granting him a firearms qualification waiver, placing him in administrative duty status,
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declaring him ineligible to continue receiving AUO and requiring him to surrender his weapons,
equipment, and credentials. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000).

Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal
Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No.
0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past
personal treatment attributable to those responsible for the personnel action that led to the filing of
the complaint, comparative or statistical data revealing differences in treatment across various
protected-group lines, unequal application of Agency policy, deviations from standard procedures
without explanation or justification, or inadequately explained inconsistencies in the evidentiary
record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015).

When asked by the EEO investigator if he had heard any references or comments made about his
race, gender, age, disability, or prior EEO activity in connection with any of the incidents he
described in his complaint, he replied, “no.” IR 81, 84. When asked if he had observed anyone
being treated more favorably, he answered without elaborating that white males were treated more
favorably than other ethnic groups. IR 84. When asked why he believed that any of S1’s actions
were based on his race, sex, age, and disability, he responded with vague generalities, such as the
FOD always ensured that he received the lowest performance ratings and cash awards, the FOD
scrutinized his work more closely than that of White Officers, the FOD tries to intimidate him
because he is African-American, and that the FOD was looking for any excuse to make his life
difficult. IR 81-82, 84-85. Complainant admitted, however, that he did not believe that any of
these incidents were related to his prior EEO activity. IR 82, 85.

Apart from these, his own assertions, Complainant has presented neither affidavits, declarations
or unsworn statements from witnesses other than himself nor documents which establishes the
existence of at least one of the indicators of pretext listed above, which contradict or undercut any
of the FOD’s articulated reasons for his actions, or which call into question the FOD’s veracity as
a witness. By contrast, the FOD’s affidavit testimony had been corroborated by that of the AFOD
and the SFI. We therefore find, as did the Agency, that Complainant has not presented evidence
sufficient to show that the FOD was motivated by unlawful discriminatory or retaliatory animus
toward Complainant in connection with the incidents described in the instant complaint.

Harassment

Complainant made reference in his affidavit testimony to being harassed by the FOD. IR 81-82,
84-85. To the extent that Complainant is alleging that he was subjected to a hostile environment,
we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)
that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
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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 or
retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).

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 (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
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.
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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

September 30, 2019
Date