[Redacted], Elliott L., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionMay 20, 2021Appeal No. 2020000766 (E.E.O.C. May. 20, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliott L.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020000766 Agency No. BOP-2017-0610 DECISION On October 9, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 11, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Correctional System Officer at the Agency’s Federal Detention Center (FDC) in Houston, Texas. On August 10, 2017, Complainant filed a formal EEO complaint alleging the Agency discriminated against him based on race (Hispanic), national origin (Puerto Rican), color (Brown), disability, and in reprisal for protected EEO activity (current complaint) 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. 2020000766 2 1. from January 2015 to August 2017, the Agency subjected Complainant to harassment and disparate treatment when his supervisor did not communicate with him and did not allow Complainant to change his work schedule for special occasions; 2. in January 2016, the Agency denied Complainant’s request for a reasonable accommodation; 3. in March 2017, Complainant received an unfavorable performance evaluation; 4. on March 20, 2017, the Agency denied Complainant’s request for reasonable accommodation; 5. on April 13, 2017, the Agency caused Complainant to withdraw his request for a reasonable accommodation by threatening his continued employment; 6. on May 2, 2017, the Agency denied Complainant’s request for administrative leave; 7. on May 3-5, 2017, the Agency threatened Complainant with a Fitness for Duty Examination and intimidated Complainant, causing Complainant to reaffirm withdrawal of his reasonable accommodation request and to submit a medical retirement package; 8. on July 12, 2017, Complainant received an “unsatisfactory” performance log entry; and 9. on August 2-8, 2017, after Complainant requested that his Fitness for Duty Examination be rescheduled, he did not learn that his request was granted until the originally scheduled day of the examination. After an investigation, Complainant was provided a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on September 11, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. 2020000766 3 ANALYSIS AND FINDINGS Disparate Treatment: Claims 3 and 6 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts which, 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 based on a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, non-discriminatory reasons for its actions as more fully discussed below. Regarding claim 3, Complainant alleged that in March 2017, Complainant received an unfavorable performance evaluation. Complainant’s supervisor (Caucasian, white) stated that while he issued Complainant a yearly performance evaluation of “Exceeds Expectations,” Complainant was unhappy because he wanted an “Outstanding” rating. Complainant claimed he deserved a higher rating and that his supervisor did not grant him opportunities to come in early to perform tasks. The supervisor stated that he does not understand why he should let Complainant come in to work earlier for a 6:00 a.m.-2:30 p.m. shift, when he was assigned to the mail room. The supervisor stated that there was no reason for Complainant to come in earlier. Regarding claim 6, Complainant alleged that on May 2, 2017, the Agency denied his request for administrative leave. 2020000766 4 Specifically, Complainant claimed he requested administrative leave on May 3, 2017, to see his physician and address the letter requested by HR to support his reasonable accommodation request, but the administrative leave was denied. However, Complainant’s supervisor stated that Complainant had never requested administrative leave with him. Beyond his bare assertions, Complainant did not prove, by a preponderance of the evidence, that the reasons proffered by management were pretextual designed to mask discriminatory and retaliatory animus. Reasonable Accommodation: Claims 2, 4 and 5 Under the Commission’s regulations, an agency is required to make reasonable accommodations 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. Here, Complainant identified his disability as Post-Traumatic Stress Disorder (PTSD) as a result from three combat tours. The Commission will assume for purposes of analysis only, and without so deciding, that Complainant is an individual with a disability. Complainant claimed management denied his request for a reasonable accommodation. In January 2016, Complainant requested not to be “augmented”2 to a housing unit in the FDC because working there exacerbated his PTSD symptoms, but did not receive a response. On March 20, 2017, Complainant again requested reasonable accommodation to be placed in “a predictable, well-known and non-confined” environment to minimize his symptoms. Complainant stated that while he did not receive a response, he was instead instructed to sign a medical release form during a meeting with HR and his union representative. The National Reasonable Accommodation Coordinator (NARC) (Caucasian, American, white) stated that on March 16, 2017, Complainant submitted his physician’s medical note stating that Complainant should be placed in a non-confined environment to minimize his PTSD symptoms. He stated that he was not aware of any denial of reasonable accommodation because Complainant averred that he was no longer interested in an accommodation. Specifically, the NARC stated that on or around April 13, 2017, during an interactive meeting between Complainant and the Case Management Coordinator, Complainant stated that he was no longer interested in an accommodation. The HR Manager noted that during the relevant period, Complainant was temporarily granted an exemption from working in housing units until it was determined he was fit for duty there without restrictions. The HR Manager stated, however, before the completion of his Fitness for Duty Examination, Complainant withdrew his reasonable accommodation request. 2 The record reflects that “augmentation” refers to the practice of assigning staff members to work posts outside of their departments to fill temporary staff shortages. 2020000766 5 The HR Manager stated that the Fitness for Duty Examination was necessary because Complainant was a law enforcement officer and he was requesting to be exempt from working in law enforcement positions. In addition, the HR Manager stated the medical release she provided to Complainant was limited to the information in his medical documentation that he voluntarily provided to his supervisor. Furthermore, she stated that the purpose of the eight-point letter was to get clarification of Complainant’s medical documents and/or medical restrictions. Finally, the HR Manager clarified that at no time during the process was Complainant’s job threatened. In sum, the evidence supports a finding that the Agency provided Complainant with a reasonable accommodation until it was determined whether he was fit for duty. However, Complainant withdrew his reasonable accommodation request. As such, he has not proven a violation of the Rehabilitation Act with respect to the reasonable accommodation claims. Harassment 1, 7, 8 and 9 Harassment of an employee that would not occur but for the employee’s race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). 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 his protected bases -- in this case, race, national origin, color, disability, and prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents occurred as alleged by Complainant and/or occurred because of his race, national origin, color, disability, and prior EEO activity. As already determined, Complainant has not established that discriminatory or retaliatory factors played any role his allegations concerning his March 2017 performance appraisal, an alleged denial of administrative leave, or his reasonable accommodation claims. As such, we will only address the remaining allegations as part of his claim of ongoing harassment. Regarding claim 1, Complainant asserted that from January 2015 to August 2017, the Agency subjected him to harassment and disparate treatment when his supervisor did not communicate with him and did not allow him to change his work schedule for special occasions. The supervisor (Caucasian, white) stated that Complainant was the one who refuses to speak with him. He noted that that Complainant’s refusal to communicate with him started in March 2017, after the supervisor issued his performance appraisal which Complainant thought was unfavorable. 2020000766 6 The supervisor stated that he sent messages directly to Complainant, even though Complainant did not respond to his messages. Furthermore, the supervisor stated that employees may request a schedule change verbally or in writing. He noted that Complainant had never requested a work schedule adjustment or shared his concerns regarding his schedule. The Human Resources (HR) Manager (Native American/Caucasian, American, white) clarified that if Complainant was on a compressed work schedule, the schedule cannot be changed without negotiating a change with the union. She also noted that the changes in schedule are considered on a case-by-case basis by Complainant’s supervisors. Regarding claim 7, Complainant claimed that on May 3-5, 2017, the Agency threatened him with a Fitness for Duty Examination and intimidated Complainant, causing him to reaffirm withdrawal of a reasonable accommodation request and to submit a medical retirement package. The HR Manager acknowledged Complainant was issued a Fitness for Duty Examination which was necessary to ascertain whether Complainant was physically and mentally able to meet the fourteen physical requirements, as well as the mentality to work in a high stress and volatile work environment. She noted that the Agency requested the Fitness for Duty Examination upon determination by Central Office. The HR Manager averred that she was advised that Complainant had initiated paperwork for medical retirement but was not sure whether Complainant moved forward with his retirement. Moreover, the HR Manager denied threatening Complainant’s job status. Regarding claim 8, Complainant alleged that on July 12, 2017, Complainant received an “unsatisfactory” performance log entry. The supervisor acknowledged Complainant was issued an “unsatisfactory” performance log entry due to Complainant’s refusal to communicate with him (the supervisor) and with Complainant’s colleagues. He stated, however, that the log entry was subsequently withdrawn and is no longer in his official personnel file. Regarding claim 9, Complainant asserted that on August 2-8, 2017, after he requested that his Fitness for Duty Examination be rescheduled, he did not learn that his request was granted until the originally scheduled day of the examination. The HR Manager explained there was confusion relating to Complainant’s schedule for his Fitness for Duty Examination. She noted that her office was unaware that Complainant had been previously approved for annual leave on the date of the examination. The HR Manager averred that Complainant requested that his appointment be rescheduled. In addition, she noted that Complainant was notified of the schedule change via certified mail. However, the notification was returned unclaimed. 2020000766 7 In sum, Complainant has simply provided no evidence to support his claim that his treatment was the result of his race, national origin, color, disability or prior EEO activity. His claim of discriminatory harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION After a review of the record in its entirety, including considerations of all statements on appeal, we AFFIRM the Agency’s final decision finding no discrimination. 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 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). 2020000766 8 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. 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 20, 2021 Date Copy with citationCopy as parenthetical citation