[Redacted], Craig H.,1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Jun 9, 2021

Appeal No. 2020002993 (E.E.O.C. Jun. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Craig H.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency. Appeal No. 2020002993 Agency No. APHIS-2019-00131 DECISION On April 3, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 17, 2020 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. Complainant worked as an Animal Health Technician, GS-0704-08, at the Agency’s Veterinary Services office in Little Rock, Arkansas. On December 13, 2018, Complainant filed a formal complaint in which he alleged that the Agency subjected him to discrimination and a hostile work environment on the bases of his race (Caucasian), disability (after-effects of kidney transplant), age (62), and reprisal (prior protected EEO activity) when: 1. On April 28, 2018, the Area Veterinarian in Charge, his third-line supervisor (S3) touched him on his back; 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. 2020002993 2 2. On October 30, 2018, the Supervisory Veterinary Medical Officer, his second-line supervisor (S2), referred his request to return to work with light duty to the Human Resources Specialist for Reasonable Accommodations (HRSRA); and 3. On an unspecified date in November 2018, S3 changed his annual performance appraisal rating for fiscal year 2018 from “fully successful” to “minimally satisfactory.” The Agency dismissed the first two incidents for failure to state a claim. Alternatively, the Agency dismissed the first incident for untimely EEO counselor contact. It did not address the third incident in its dismissal decision. In Cordell H. v. Dep’t of Agric., EEOC Appeal No. 2019002256 (Aug. 23, 2019), the Commission reversed the Agency’s decision with respect to incidents (2) and (3), but affirmed with respect to incident (1), finding that the single event in question was not sufficiently severe or pervasive to raise a claim of discriminatory harassment. Following the ensuing investigation, the Agency notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. On February 19, 2020, Complainant requested a final agency decision. On March 17, 2020, the Agency issued its final decision finding no discrimination. The instant appeal followed. In support of his appeal, he submitted copies of exhibits from the investigative report but did not file a brief. 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”). Unauthorized Disclosure of Medical Information In raising incident (2), Complainant appears to be arguing that S2 disclosed his private medical information to unauthorized individuals. Our regulations specify that information regarding an employee’s medical condition or history is to be treated as a confidential medical record, except that supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations. 29 C.F.R. § 1630.14(c); Velva B. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017) req. for reconsid. den’d EEOC Request Nos. 0520180094 & 0520180095 (Mar. 9, 2018). 2020002993 3 The record evidence reveals that Complainant underwent a kidney transplant in December 2017 and was cleared to return to work on a part-time, light-duty capacity in early April 2018. Medical documents provided by Complainant’s physician indicated that he could only work for three days per week, could not lift more than 29 pounds, had to wear a mask, and could not work around anyone who was ill. He remained in light duty status until his retirement in January 2019. In light of concerns about whether Complainant could perform the essential functions of his job, S2 sought guidance and clarification from the HRSRA on whether and to what extent a reasonable accommodation would be necessary. Investigative Report (IR) 103-04, 113-14, 123, 183, 188-90. 194-99 201-02, 208. These circumstances fit squarely within the exception to the nondisclosure requirement set forth in 29 C.F.R. § 1630.14(c). Accordingly, we find no unauthorized disclosure of Complainant’s medical information. 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/she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since S2 and S3 articulated legitimate and nondiscriminatory reasons for their actions vis-à-vis Complainant. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Regarding incident (2), as discussed above, S2 referred Complainant’s medical information to the HRSRA because he needed guidance as to whether or not Complainant needed a reasonable accommodation. As to incident (3), S3 testified that she issued Complainant an overall appraisal rating of minimally satisfactory for fiscal year 2018 because of his refusal to go on a mandatory detail without obtaining an exemption. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanations put forward by S2 and S3 are pretexts 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). As to incident (2), Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which contradict or undercut, or conflict with S2’s explanation regarding his need for guidance on whether Complainant was eligible for a reasonable accommodation. 2020002993 4 With respect to this incident, we agree with the Agency that the evidentiary record does not support Complainant’s contention that S2 was motivated by unlawful considerations of his race, disability, age, or previous EEO activity when he provided Complainant’s medical documentation to the HRSRA. Concerning incident (3), Complainant’s immediate supervisor (S1) had initially given Complainant an overall performance rating of fully successful for fiscal year 2018. S3, however, lowered Complainant’s rating to minimally acceptable, due to his failure to perform necessary collateral duties in the form of a mandatory detail to a facility in California. S3 emphasized that Complainant would have been exempt from the detail requirement had he obtained a reasonable accommodation for which he was eligible, and that Complainant had steadfastly refused to seek a reasonable accommodation, laboring under the mistaken belief that doing so would result in a violation of his privacy rights. The detail requirement was imposed on all employees by the facility’s top management and employees were warned that their refusal to go on those details would adversely affect their performance evaluations. IR 107, 116-17, 142, 192, 254-55. Therefore, the record supports S3’s explanation for lowering Complainant’s fiscal year 2018 performance appraisal. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 2020002993 5 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. 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. 2020002993 6 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 9, 2021 Date