[Redacted], Charles G., 1 Complainant,v.Lonnie G. Bunch III, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity Commission

Jun 24, 2021

Appeal No. 2020002179 (E.E.O.C. Jun. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charles G.,1 Complainant, v. Lonnie G. Bunch III, Secretary, Smithsonian Institution, Agency. Appeal No. 2020002179 Agency No. 18-03-022018 DECISION On January 21, 2020, 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 October 25, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Police Officer, NZ- 0083-07, at the Agency’s Office of Protective Services, National Zoological Park in Washington, District of Columbia. On February 20, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment and/or discrimination on the basis of disability when: 1. On or about June or July 2016, Complainant was found ineligible for the Criminal Investigator position, 16R-LG0301414-MPA-OPS; 2. On or about September or October 2016, Complainant was found ineligible for the Criminal Investigator position, 16R-CR-201689-MPA-OIG; 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. 2020002179 2 3. On April 27, 2017, Complainant was found ineligible for the Physical Security Specialist position, 17R-LG-302653-MPA-OPS; 4. On or about August 29, 2017, Complainant was placed on involuntary light duty, assigned to sit at the reception desk at the Zoo Police Station, and reassigned from the midnight shift to the day shift; 5. In late summer and/or September 2017, Complainant was improperly classified as a Schedule A employee and, when he attempted to clarify this situation with the Office of Human Resources, Complainant was told that the Agency can keep him as a probationary Schedule A in perpetuity; 6. On or about November or December 2017, Complainant was found ineligible for the Criminal Investigator position, 17-LG-303086-MPA-OIG; 7. On September 1, 2017, Complainant was notified via memo that he was required to take a medical examination to return to full duty; 8. On or about November 8, 2017, Complainant was advised by a Lieutenant that he would have to take another physical examination with a specialist or risk being placed on sick leave or administrative leave without pay; and 9. On November 9, 2017, Complainant was advised that he was “unfit for duty” based on the results of the medical examination and required to request temporary limited duty. The Agency dismissed claims (1), (2), and (3) pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. It accepted claims (4) through (9) and conducted an investigation, which produced the following pertinent facts: Alleged Basis of Disability Complainant attested that he had Type I diabetes. The Chief of Police (Chief), Assistant Chief of Police (Assistant Chief), District Manager (Manager1), two Supervisory Police Officers (Supervisor1 and Supervisor2), and Medical Officer (MD) attested that they were aware Complainant had a medical condition. Chief, Manager1, and Supervisor1 explained that Complainant’s position as a Police Officer required him to perform patrol duties, which required him to carry a firearm and drive police vehicles. MD attested that Complainant had insulin-dependent diabetes with incapacitating hypoglycemic episodes. She explained that sudden, debilitating hypoglycemia is not consistent with the ability to perform the duties of the Police Officer position. She further explained that diabetes is a permanent condition, but hypoglycemic episodes can be prevented with treatment and continuous monitoring. Claims (4), (7), (8), and (9) Complainant attested that he had an incident of low blood sugar at work and was placed on involuntary light duty the next day, on or about August 29, 2017. 2020002179 3 He attested that he was told that it was not safe for him to be a police officer and he would be a burden on his unit. He attested that he was stripped of all his police duties, placed at the information desk, and not allowed to leave the desk without permission. An August 29, 2017 Memorandum from Chief to Complainant indicates that Complainant was placed on weapons restriction because of a medical episode on August 28, 2017. As background information, the memo details Complainant’s involvement in a motor vehicle accident on August 22, 2017, during which Complainant was non-compliant and unresponsive to responding police and having a medical emergency. It indicates that Fire/EMS personnel confirmed that Complainant’s blood sugar was low and transported Complainant to a hospital. The memo also describes the events of August 28, 2017, when Complainant’s speech became unintelligible, stared blankly, and became unresponsive. It indicates that Fire/EMS personnel determined Complainant’s blood glucose level was 28 and administered oral glucose, to which Complainant responded almost immediately. It also indicates that Complainant’s placement on weapons restrictions was not punitive but was because Chief had reservations about Complainant’s continued ability to safely carry a firearm and drive a patrol vehicle. Complainant attested that, in September 2017, MD notified him that he was required to take a medical examination to return to full duty; and, on or about October 23, 2017, he went to an Agency-provided doctor, but he was not provided information as to the outcome of that exam. MD attested that she reviewed the incident reports prepared by OPS and determined that a fitness for duty exam or independent medical exam (IME) was warranted, due to the impairment observed by Complainant’s supervisor and the police. She attested that the Agency ordered an IME because Complainant opted not to provide medical documentation due to privacy concerns. She noted that the need for the IME was due to Complainant’s mental status changes which rendered him unable to protect himself or control his weapon. Chief attested that management acted to protect Complainant’s safety and the safety of the public. He attested that Complainant was sent a Memorandum dated September 21, 2017 informing him that he would have to take an IME due to the fear that Complainant would become incapacitated again while performing his job duties. A September 21, 2017 Memorandum from Chief to Complainant indicates that Complainant was required to submit to an IME for his fitness to perform the physical requirements of his job as a Police Officer, specifically whether he was “physically and mentally able to qualify with firearms and to operate police vehicles,” referencing the Zoo Police Offer position description. The memorandum indicates that, on August 22 and 28, 2017, Complainant had incidents of low blood sugar levels that raised concerned about his continued capacity to meet the physical requirements of his position and safely perform his duties. 2020002179 4 It also indicates that, because Complainant’s job involves carrying a firearm and operating police vehicles, as well as, more generally, protecting the life and property of the Agency, and Complainant appeared to have become incapacitated and impaired, the Agency was requiring Complainant to undergo a medical exam. Complainant alleged that, on or about November 8, 2017, Supervisor1 advised him that he would have to take another physical exam, or he would risk being placed on sick leave or administrative leave without pay. He stated that, on November 9, 2017, he received notice that he was unfit for duty and Supervisor1 informed him that he would have to request temporary light duty, which he did. He attested that, on or about November 10, 2017, his request for light duty was granted and he continued working in his assignment sitting at the front desk on a day shift. MD attested that Complainant competed the IME on October 24, 2017, but as of October 29, 2017, he still had not provided documentation from his treating physician or signed a medical release for information relating to the hypoglycemic episodes. She explained that, while Complainant was asked to provide this information, he was not asked to submit to another exam. A November 15, 2017 Memorandum from the Chief to Complainant provides the results of the IME. It indicates that Chief was in receipt of Complainant’s request for temporary limited duty and that the physician who performed the IME advised that Complainant should not handle, carry, or control a firearm and should not operate a police vehicle until he has been evaluated and cleared to do so by a medical specialist. The memo provides that Complainant’s request for temporary limited duty for 45 days was approved and that, if Complainant needs additional time to obtain clearance, he should request additional temporary light duty. MD attested that Complainant was not returned to full duty because he did not take the steps to return to work that were in the IME. She attested that, on January 12, 2018, she received notice that Complainant had accepted a position at another Agency, effective January 21, 2018. She noted that he had not provided any documentation regarding the control of his hypoglycemia. Claim (5) Complainant alleged that he was improperly classified as a Schedule A employee and told that the Agency could keep him in that classification indefinitely. He attested that, when he was first hired, his SF-50 classified him as a career, permanent employee and his entry on duty paperwork indicated that he was not a probationary employee. He attested that he was told that it was better for the Agency’s statistics to have more disabled employees. HR Specialists (HR1 and HR2) attested that Complainant had a Schedule A letter as part of his new hire folder. HR1 attested that Complainant was classified as a Schedule A employee because he applied as a Schedule A employee; he was not “reclassified” as Schedule A. She attested that Complainant was selected for the Police Officer position from the Schedule A certificate and was properly classified as Schedule A. She attested that Complainant remained a Schedule A employee until he left employment in January 2018. 2020002179 5 Claim (6) Complainant attested that he applied for the Criminal Investigator position through USAJobs as a Schedule A candidate but received an email stating that he was ineligible. Complainant attested that he met the qualifications for the position because of his experience in police work, law enforcement, and investigative work. He attested that he was not given a reason as to why he was found ineligible. An HR Specialist (HR4) confirmed that Complainant applied for the position at issue as a Schedule A applicant through the competitive service. She explained that she determined Complainant was ineligible because he did not meet the time-in-grade and specialized experience requirements. 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 (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. The instant appeal followed. In response to the appeal, the Agency argues that its final decision is well-supported factually and legally and asks that we affirm it. 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”). Dismissed Claims EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. 2020002179 6 Here, the Agency dismissed claims (1), (2), and (3), which allegedly occurred on or about June or July 2016, on or about September or October 2016, and on April 27, 2017, respectively. The EEO Counselor’s report indicates that Complaint first contacted an EEO Counselor on October 12, 2017, which is beyond 45 days from each of these alleged events. On appeal, Complainant has not provided sufficient justification to warrant extending or tolling the time limit. Therefore, we find dismissal of these claims was proper. However, as discussed below, they are still considered as part of the overall harassment claim. Disparate Treatment Claims A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). As an initial matter, Complainant identified his disability as Type I diabetes. For purposes of this analysis, we will assume arguendo, that he was an individual with a disability. Complainant’s allegations regarding being assigned to light duty, required to submit to an IME, and then deemed unfit for duty give rise to claims of disparate treatment. However, even if we assume arguendo that he established a prima facie case, his claims still fail, as we find the Agency articulated legitimate non-discriminatory reasons for its actions. First, regarding being assigned to light duty, the Agency explained that Complainant was placed on light duty and weapons restrictions because, following Complainant’s medical incidents, Chief had reservations about Complainant’s continued ability to safely carry a firearm and drive a patrol vehicle. Regarding the Agency’s requirement that Complainant submit to an IME, we note that employers may require a medical examination such as that conducted here only if the examination is job-related and consistent with business necessity. See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (July 27, 2000) (web version) (Guidance), at 5. This requirement is met when the employer has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform the essential job functions is impaired by a medical condition; or (2) that an employee poses a direct threat due to a medical condition. See Guidance at 14. 2020002179 7 Here, we find that the Agency had a reasonable belief, based on the objective evidence discussed above regarding Complainant’s incapacitating episodes caused by his diabetes, that Complainant might not have been able to safely perform the essential functions of his job and/or that he posed a direct threat to himself and others. The Agency explained that Complainant was required to take an IME because his job as a Police Officer involved carrying a firearm and operating police vehicles, as well as, more generally, protecting the life and property of the Agency, and Complainant appeared to have become incapacitated and impaired. We find the Agency’s actions in requiring the IME were job-related and consistent with business necessity. Therefore, they were legitimate and non-discriminatory. Regarding his allegation of being deemed unfit for duty, the Agency explained that the results of the IME were that Complainant was not physically or mentally able to carry a firearm or operate a police vehicle and restrictions were recommended until Complainant’s treating physician could certify that Complainant’s hypoglycemia was controlled. We find these explanations to also be legitimate and non-discriminatory. Complainant’s allegations regarding not being selected for the Criminal Investigator position also gives rise to a disparate treatment claim. However, we also find the Agency articulated a legitimate, non-discriminatory reason for its actions. The Agency explained that Complainant was deemed ineligible for the position because he did not meet the time-in-grade and specialized experience requirements. The record does not establish that the Agency acted with any discriminatory intent. Although Complainant has alleged the Agency discriminated him with respect to all of these claims, we find the record does not establish that the Agency acted with discriminatory intent. Therefore, we find he has failed to establish any claims of disparate treatment. Harassment Claim To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, 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. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, his disability. 2020002179 8 Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Complainant's harassment allegations can generally be described as disagreements with managerial decisions and/or policy, including matters relating to the selection and qualification of employees, assignments, and employee classification. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age). Therefore, we find Complainant’s allegations are insufficient to support a claim of discriminatory harassment. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2020002179 9 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020002179 10 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 June 24, 2021 Date