Orval T.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Sep 14, 2018

0120161688 (E.E.O.C. Sep. 14, 2018)

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

Orval T.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120161688

Agency No. 15-0062-AL

DECISION

On April 18, 2016, 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 21, 2016, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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

At the time of events giving rise to this complaint, Complainant worked as a Nuclear Materials
Courier/Federal Agent, 0084, NV-1, with the Agency’s National Nuclear Security Administration,
Office of Secure Transportation (OST), in Albuquerque, New Mexico. Beginning in September
2014, Complainant and his fellow OST Federal Agents were required to undergo physical fitness
testing including measured running, jumping, and exercising. Complainant failed to pass the test
and was required to participate in a training regimen designed to improve his performance on the
physical fitness test.

On March 9, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of age (44) 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. In late September of 2014, continuing through January 6, 2015, management
subjected him to non-official, non-implemented Physical Fitness Readiness
Standards, which excluded sliding-scale considerations based on age factors.
2. In late September of 2014, he was placed on an ongoing and supervised remedial
physical-fitness training regimen by his supervisor, and during his ongoing
supervised physical-fitness workouts and sessions, his supervisor harassed and
demeaned him on multiple and continued occasions by the acts of physically
standing over him, by hovering next to him, or by appointing a designee to do the
same.
3. During the week of November 17, 2014, while TDY at a training event at Fort
Knox, his supervisor informed him that his remedial physical fitness training
sessions would occur after duty-hours. In addition, his supervisor threatened him
with additional physical fitness training in between other on-the-clock training
activities.
4. On December 1, 2014, his supervisor informed him that he would not receive a
year-end FY14 performance bonus because he failed the Physical Readiness Test
(PRT). In addition, his FY14 written Performance Appraisal indicated that he
performed below the future 2016 standard in the new Agent’s Physical Readiness
Test.
5. On December 1, 2014, his supervisor spied on him, interrupted him, and hurried
him, as he was working on completing his Request for Reconsideration of
Performance Evaluation documentation.
6. On January 6, 2015, his supervisor (after Complainant informed him that he was
experiencing a back injury/back strain that happened the day prior) caused further
physical harm and aggravated physical injury to him, as his supervisor scolded him,
coerced him, and forced him (under his supervisor’s verbal threat of being placed
on “NED” [Nuclear Explosive Duty] status) to perform intensive and rigorous
physical-fitness training activities.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). In accordance with Complainant’s request, 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.

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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”).

Harassment (Claims 1 – 6)

It is well-settled that harassment based on an individual’s statutorily protected bases is actionable.
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of
harassment, Complainant must show that: (1) he belongs to the statutorily protected classes or
engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his
membership in those classes or his prior EEO activity; (3) the harassment complained of was based
on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably
interfering with his work performance and/or creating an intimidating, hostile, or offensive work
environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982).

To prove his harassment claim, Complainant must establish that he was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant's position would
have found the conduct to be hostile or abusive. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993). Complainant must also prove that the conduct was taken because of a protected basis - in
this case because of his age. Only if Complainant establishes both of those elements -- hostility
and motive – can he prevail.

In this case, there is no evidence that the alleged harassment was based on Complainant’s age.
There is nothing inherently age-related in the requirement for physical fitness testing. Nor is there
evidence that Complainant was subjected to age-based comments or ridicule that could support a
finding of age-based discriminatory animus.

Disparate Treatment (Claims 1-4, 6)

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 (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).
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The prima facie inquiry may be dispensed with where 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).

To establish a prima facie case of age discrimination, Complainant must show that he was over
forty years of age, that he was subjected to an adverse employment action, and that he was treated
less favorably than other similarly situated employees younger than himself, i.e., he was accorded
treatment different from that given to persons who are considerably younger than he. See Reeves,
supra; O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).

Here, Complainant has failed to show that he was treated less favorably than his younger
comparators. Indeed, Complainant admits that he was held to the “same physical standards” as
his younger co-workers. Report of Investigation at 121. Apparently, Complainant believes he is
entitled to be held to a less demanding physical standard than his younger colleagues. We are
unaware of any authority supporting Complainant’s claim that he is entitled to preferential
treatment because of his age.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant
did not establish that he was discriminated against as alleged.

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.
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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.

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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 14, 2018
Date