Kelly A.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

May 12, 2020

2019001576 (E.E.O.C. May. 12, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kelly A.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency. Appeal No. 2019001576 Agency No. APHIS-2018-00541 DECISION On January 2, 2019, 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 December 7, 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. BACKGROUND Complainant worked as a Special Assistant to the Director of the Human Resources Division (HRD), GS-0201-14, at the Agency’s Headquarters in Washington, D.C. On May 18, 2016, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the basis of disability (concussion-related memory loss, confusion, concentration issues and headaches stemming from traumatic head injury) when: 1. On February 22, 2018, that the Deputy HRD Director, his immediate supervisor at the time (S1), launched a misconduct investigation against Complainant. 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. 2019001576 2 2. On March 7, 2018, the Acting HRD Director, Complainant’s second-level supervisor (S2), demoted Complainant from his temporary GS-15 position to a GS-14 special assistant position. 3. Since March 14, 2018, S1, S2 and the Reasonable Accommodation Specialist (RAS) failed to respond to Complainant's request for a reasonable accommodation. At the conclusion of the ensuing 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 (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. On February 18, 2018, Complainant fell while at work, sustaining a head injury. According to a doctor’s note dated July 19, 2018, Complainant’s injury resulted in a loss of consciousness. Complainant had been in physical therapy since May 2018 as a result of the injury, and had continued to exhibit symptoms of dizziness, blurred vision, impaired balance, and difficulty in “motion-rich” environments. The physician also stated that there was an unknown prognosis for how much his symptoms would improve. IR 51. Complainant averred that the injury affected all facets of his life and cited additional issues such as memory loss and confusion. He stated that he attempted personal tasks at home such as grocery shopping and would forget what he set out to do. He described how, when arriving at work on at least 10 occasions after the accident, he would walk into a colleague’s office, the storage room, or the breakroom rather than his own office. IR 43. Incident (1): According to S1, Complainant had been detained by officers from the Federal Protective Service after he was seen walking out of the cafeteria with food that he did not pay for on February 22, 2018. At a meeting held with Complainant, S1, S2, and the Security Officer on February 26, 2018, the Security Officer revealed that Complainant had been banned from the cafeteria for six months as a result of the incident. Later, Complainant met with S1 and S2 separately. During that meeting, Complainant expressed embarrassment and stated that he was a cancer survivor but did not mention the accident or its aftereffects. Management decided to launch an investigation into the incident. Complainant averred that S1 did not give a reason for the investigation other than the need to protect the Agency, and that he did not know the outcome of the investigation. S1 responded that her goal and S2’s goal was to act discretely to find out the best way to protect Complainant as he was serving multiple roles for the Agency, including that of employee misconduct investigator. S1 further averred that after the meeting, she and S2 contacted an Employee Relations Supervisor in the Human Resources Office for advice on what the next steps should be. They were referred to an Employee Relations Specialist (ERS) with the Food Safety Inspection Service (FSIS) for an external review. IR 44-45, 48, 63-64, 70-72, 123, 172-222. 2019001576 3 Incident (2): Complainant acknowledged that S1 cited the February 22, 2018 cafeteria incident as the reason for ROM2’s action. He admitted that he left the cafeteria on that date without paying for his food. S1 averred that S2 removed Complainant from his temporary GS-15 detail as the Acting Employee Services Director, which was due to expire on March 17, 2018. S1 characterized S2’s decision as a reassignment, and not a demotion. S2 averred that after he had reviewed the report of the cafeteria incident issued by the Security Office and the surveillance video from the cafeteria, the ERS from the FSIS handling the matter advised that it would have to be referred to FSIS’s Employee Misconduct Investigative Staff. The ERS also advised that since Complainant was responsible for conducting employee misconduct investigations, he should be reassigned from his Acting Director position to another position that would not require him to engage in that function. IR 46, 65. 73, 98, 111. Incident (3): Complainant sent an email to S1 on March 14, 2018, in which he described his injury, the conditions resulting from that injury, and the major life activities adversely affected by that injury. He framed his request for a reasonable accommodation as follows: “As an accommodation, I asked that if you become aware of any of my work or behavior that you think exhibits confusion or a lapse of memory, that you bring it to my attention immediately so that we can discuss it.” Complainant further averred that he never received a response to his request from S1 other than a request from S1 to let her know if any of his symptoms had changed. S1 averred that she received Complainant’s email on March 14, 2018, and that prior to receiving that email, she was not aware that Complainant had a disability. S1 met with Complainant on March 19, 2018. During that meeting, she asked him several questions in order to learn more about his condition and how she and the rest of the management team could best support his request. S1 further averred that although Complainant subsequently contacted the RAS, he did not provide her with the medical documentation needed to support the accommodation. According to email correspondence between Complainant and the RAS, Complainant did not reply to the RAS until April 25, 2018, in which he formally requested a reasonable accommodation. Complainant submitted medical reports the next day. In an email dated May 1, 2018, the RAS indicated that Complainant had returned the signed medical release form on April 30, 2018 but on May 2, 2018, he stated that he was rescinding the signed medical release. The RAS had asked Complainant if he was going to provide the medical documentation, but there was no further response from Complainant. IR 48, 61-62, 65-66, 70, 84, 124, 125-27, 149, 153-55. Complainant retired effective May 4, 2018. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency failed to accommodate his disability. Complainant argues that he submitted medical documentation to support his request, but the Agency’s medical release was overly broad. Complainant contends that the Agency failed to engage in a good faith interactive process or consider an interim accommodation. Accordingly, Complainant requests that the Commission reverse the final decision. 2019001576 4 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”). Disparate Treatment - Incidents (1) and (2): 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 S1 and S2 had articulated legitimate and nondiscriminatory reasons for the conduct at issue in incidents (1) and (2). See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to incident (1), S1 stated that the inquiry was launched because of the Federal Protective Service’s report that Complainant had taken food out of the cafeteria without paying for it. Concerning incident (2), S2 stated that in light of the fact that Complainant was suspected of theft, he had followed the ERS’s recommendation that Complainant be taken out of his position as an overseer of employee misconduct investigations. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that explanations given by S1, S2 and the RAS were pretexts for discrimination for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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. 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). 2019001576 5 When asked why he believed that S1’s initiation of a fact-finding inquiry was based on his disabilities, he replied that she had observed the cuts and bruises on his face, and that he had reminded her of his symptoms, but she wanted to launch the investigation anyway. IR 45. While she might have seen his injuries, S1 stated that she was not aware that Complainant’s condition was a disability. The only condition Complainant had mentioned during the February 26, 2018 meeting with S1 and S2 was that he was a cancer survivor. It was not until March 14, 2018, that he began to express the need for an accommodation due to the residual effects of his head injury. When asked why he believed that S2’s decision to reassign him out of his GS-15 detail on March 7, 2018, he responded that S1, and by extension S2, should have known about his memory issues. IR 46-47. Again, the reassignment occurred one week before he submitted a formal request for a reasonable accommodation for the issues related to his condition. Beyond his bare assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which contradict or undercut the explanations provided by S1 for the inquiry and S2 for the reassignment, which establish the existence of at least one of the indicators of pretext listed above, or which cause us to question the veracity of S1 and S2 as witnesses. We therefore concur with the Agency in finding that Complainant has not presented evidence sufficient to establish that S1 and S2 were motivated by unlawful considerations of his disability in connection with the actions described in incidents (1) and (2). Denial of Reasonable Accommodation - Incident (3): An Agency is required to make reasonable accommodation 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; Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). In order to establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). It is undisputed that Complainant is a qualified individual with a disability. Complainant averred that management did not respond at all to his request for a reasonable accommodation. IR 49. Contrary to Complainant’s assertion, we find that S1 made a good faith effort to provide Complainant with the accommodation he was seeking. S1 met with Complainant and asked specific questions to determine how the Agency might be able to assist him during his periods of confusion. S1 affirmed that Complainant did not provide any suggestions about how she could support his request. S1 stated that she discussed with Complainant options for leave if he needed it for doctor’s appointments or if he was not feeling well. S1 advised Complainant to contact the Agency’s reasonable accommodation staff to identify his limitations and potential accommodations. Complainant began the reasonable accommodation process with RAS; 2019001576 6 however, Complainant subsequently rescinded the medical release that he had previously agreed to, which prevented the RAS from obtaining the medical documentation that she needed in order to process his reasonable accommodation request. Complainant retired effective May 4, 2018. Under the Commission's guidelines, an agency may request additional information when presented with a request for reasonable accommodation in order to determine what accommodation would best serve the needs of the agency and complainant. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002, Question 6 (Oct. 17, 2002). Moreover, when an individual's disability or need for reasonable accommodation is not obvious, and he fails to provide reasonable documentation requested by the employer, the employer will not be held liable for failure to provide the requested accommodation. Id. Here, the record shows that Complainant rescinded the medical release which prevented the Agency from obtaining necessary medical documentation to address Complainant’s accommodation request. While Complainant had submitted some medical documentation, Complainant failed to provide the Agency with specific medical documentation or any specific information to assist in addressing his condition. Therefore, the Commission finds that Complainant has not established that the Agency failed to provide him with a reasonable accommodation in violation of the Rehabilitation Act. Hostile Work Environment 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). 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. 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. 2019001576 7 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. 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. 2019001576 8 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 May 12, 2020 Date