0120152720
12-14-2017
Kennith H.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kennith H.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(National Geospatial-Intelligence Agency),
Agency.
Appeal No. 0120152720
Hearing No. 570-2012-00924X
Agency No. NGAE-12-SI04
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 June 23, 2015 final order 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., and 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 order.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that he was subjected to disparate treatment discrimination based on race (African American), physical disability (epilepsy), and reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as a Police Officer at the Agency's Security and Installations Operations Directorate facility in National Geospatial-Intelligence Agency, Bethesda, Maryland. On December 8, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), physical disability (epilepsy), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 Section 501 of the Rehabilitation Act of 1973 when:
1. On October 4, 2011, another employee (E2, White male), was permitted to remain on a light duty assignment longer than sixty (60) days, while Complainant was not;
2. on October 17, 2011, he received a Notice of Proposed Removal, signed by the Security & Installation (SIO), Chief of Police (Chief) proposing to remove him from his Police Officer positions; and
3. On March 14, 2012, he was reassigned to light duty.
Complainant began working for the Agency as a Police Officer in February 2006. During the Summer of 2010, a co-worker informed Complainant that while she was talking to him, he became unresponsive. Thereafter, Complainant sought medical attention, and was subsequently diagnosed with epilepsy. Upon the recommendation of the neurologist that initially treated Complainant, he requested and was granted a light duty assignment. Complainant was restricted, among other things, from operating a motor vehicle and using a firearm, but was permitted administrative functions.
In October 2010, Complainant requested a reasonable accommodation, as he was unable to perform the essential functions of the police officer position. The Agency approved his request and in December detailed him to an Area Security Officer (ASO) position at the Agency's facility in Bethesda, Maryland, and informed him that continued reasonable accommodation efforts were contingent on whether Complainant qualified for vacant, funded positions. The ASO position was ultimately extended until September 2011, when the Bethesda facility was decommissioned because of the Agency's move to its new facility in Springfield, Virginia. In anticipation of the expected end to the ASO detail, the Agency's Human Development Consultant (HDC) reviewed Agency vacancies on at least 3 separate occasions between August and September 2011.
Complainant initially filed his formal complaint on December 8, 2011, based on allegations 1 and 2. Thereafter, the Agency accepted allegation 1, but dismissed allegation 2 as a proposed personnel action that had not yet taken place, and therefore not an adverse action.2 The Chief had proposed the removal because the Agency did not have sufficient duties to support Complainant's continued temporary duty. Complainant was placed on administrative leave until February 29, 2012. On March 1, 2012, he was returned to full duty after providing new medical documentation.
On March 27, 2012, Complainant was returned to light duty for a period of 60 days, retroactive to March 14, 2012. The light duty assignment was made based on reports the Agency received from three of Complainant's fellow officers that he appeared to be unresponsive and had slurred speech, during a training exercise on March 13, 2012.
On April 17, 2012, Complainant requested that his complaint be amended to include allegation 3 above, that he was discriminated against on the bases of race, disability and reprisal (for initiating the instant EEO activity on October 13, 2011) and subjected to disparate treatment when he was assigned to light duty on March 14, 2012.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that, E2 was injured during on-the-job training and was allowed to stay on a detail in an administrative capacity for over a year. Complainant asserts that there should be no distinction between light duty assignments given because of a medical condition experienced while at work and an injury experienced while not at work.
Complainant also asserts that the witnesses who reported that he appeared to have a seizure, were not qualified to make the determination as to whether or not he in fact had a seizure. Moreover, if he had had a seizure, they did not follow proper emergency procedures to assist him.
The Agency offers nothing further beyond its affirmation of the AJ's Decision, indicating that it will fully implement that decision and order entering judgment.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B (Aug. 5, 2015) (providing that an AJ's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and the Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See EEO MD-110, Ch. 9, � VI.A. (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 the Commission "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").
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision Without a Hearing
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review of the record, we find that there are no genuine issues of material fact presented here. The record has been adequately developed, and all procedural perquisites for a hearing before an EEOC Administrative Judge were met. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment based on Race, Disability and Reprisal
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Upon review of the record, we find that the Agency did not subject Complainant to disparate treatment on the bases of race, disability or reprisal for prior protected EEO activity. Assuming, arguendo, that Complainant established a prima facie case of discrimination on the alleged bases,3 we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, the Agency placed E2 on light duty for more than 60 days because he was injured on the job. While Complainant asserts that he should be treated as having an on the job injury, he provides no authority to support his position. Furthermore, to the extent Complainant is alleging that he was denied a reasonable accommodation when his light duty assignment ended, we note that even if we were to find that he was a qualified individual with a disability, the Commission has held that an agency is not obligated to allow an employee to permanently perform nonessential duties as a reasonable accommodation. See Vina D. v. Dep't of Homeland Security, EEOC Appeal No. 0120152229 (Jul. 26, 2017); Spry v. U.S. Postal Serv., EEOC Petition No. 03980078 (Dec. 11, 1998).
Finally, with respect to the Agency's reassignment of Complainant to a light duty position in March 2012 and thereafter assigned him to another position because he could not perform the essential functions of the Police Officer position, we find no persuasive evidence of pretext. According to the Agency, the light duty assignment was made based on reports from three of Complainant's fellow officers that he appeared to be unresponsive and had slurred speech during a training exercise on March 13, 2012. Complainant questions whether his colleagues were qualified to make determinations as to whether he had a seizure, but we find no evidence that discriminatory animus played a role here.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate, as no genuine issue of material fact exists. We also find that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies and laws. Further, construing the evidence to be most favorable to Complainant, we find that Complainant failed to present evidence that any of the Agency's actions were motivated by discriminatory animus toward his protected classes. We therefore AFFIRM the agency's final order fully implementing the decision of the Administrative Judge finding no discrimination.
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.
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
_12/14/17_________________
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 Allegation 2 is not a subject of this decision.
3 We note that protected opposition activity includes requesting reasonable accommodation for a disability. EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, � II.A.2.e (Aug. 25, 2016).
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