[Redacted], Garret W, 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Railroad Administration), Agency.

Equal Employment Opportunity Commission

Apr 22, 2021

Appeal No. 2019004597 (E.E.O.C. Apr. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Garret W,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Railroad Administration), Agency. Appeal No. 2019004597 Hearing No. 570- 2016-00628X Agency Nos. 201526408FRA02, 201526410FRA02 201526411FRA02 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (FAD) dated May 20, 2019, dismissing his complaints alleging unlawful employment discrimination in violation of 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. BACKGROUND At the time of events giving rise to these complaints, Complainant worked as a Railroad Safety Inspector, GS-2121-12, at the Agency’s Region 3, Office of Railroad Safety, Federal Railroad Administration facility in Washington DC. On July 20, 2015, Complainant filed three formal complaints alleging that the Agency subjected him to discrimination on the bases of disability (tinnitus, Post Traumatic Stress Disorder, mixed anxiety, depression, hypertension, full thickness left rotator cuff tear; neck pain; strain of triceps brachi muscle; carpel tunnel syndrome, right and left; intervertebral disc disorder of cervical 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. 2019004597 2 region with myelopathy; and closed head trauma), age (68), and reprisal for prior protected EEO activity. In the first complaint, under Agency No. 201526408FRA02, Complainant alleged that he was subjected to discrimination when: 1. On unspecified occasions, management provided false and misleading information to the Department of Labor, Office of Workers’ Compensation Programs (OWCP) regarding Complainant’s filing for workers’ compensation for on-the job injuries in an effort to deny him the ability to be compensated for those injuries. In the second complaint, under Agency No. 201526410FRA02, Complainant alleged that he was subjected to discrimination when: 2. In approximately April 2015, Complainant became aware that management perpetuated a hostile work environment against him by holding weekly conference calls about him with the Office of Chief Counsel and Human Resources; 3. Since his termination, management refused to provide Complainant with documents requested that were saved on the hard drive of his government-issued computer; and 4. Management failed to timely respond to his request for assistance in the retirement process. In the third complaint, under Agency No. 201526411FRA02, Complainant alleged that he was subjected to discrimination when: 5. In March 2015, Complainant’s request for reasonable accommodation for an on- the-job injury and for Post-Traumatic Stress Disorder (PTSD) was denied. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Complainant subsequently withdrew his request and the AJ dismissed the request and returned the matter to the Agency. The Agency then issued a Final Agency Decision dismissing the complaint for various reasons. With regard to claim 1, the Agency found that Complainant was making a collateral attack against the OWCP forum and hence failed to state a claim. With regard to claim 2, the Agency found that Complainant failed to state a claim because the allegation did not show that he was aggrieved by the Agency’s action, or that the action was severe enough to constitute harassment. With regard to claims 3 and 4, the Agency found that Complainant had subsequently received the information he sought and the matters had been resolved prior to the filing of the complaint, and indicated2 that the matters were being dismissed 2 The Agency did not specify its reasoning but cited 29 C.F.R.§ 1614.107(a)(1) which addresses both failure to state a claim and stating the same claim as a previously-filed claim. 2019004597 3 for failure to state a claim. With regard to claim 5, the Agency dismissed on the grounds that Complainant was stating the same claim as a previously-filed claim. ANALYSIS AND FINDINGS With regard to claim 1, the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The Agency found that the proper forum for Complainant to raise his challenges to the actions of Agency officials in the processing of his OWCP claims was within those proceedings themselves. Complainant, however, argues that the Agency failed to forward his claims to the OWCP and hence OWCP did not generate any claim folder or claim number for him. Because no claim or claim number had been generated, Complainant further argues, he could not raise his challenges to the Agency’s actions with the OWCP because when he contacted that office to seek to do just that, he was told that since no claim had been filed by the Agency and no claim number generated, there was no claim for him to contest. A review of the OWCP’s website confirms that it is the employer Agency that bears the responsibility for forwarding an employee’s OWCP claim to that office, not the employee. We therefore disagree with the Agency and find that Complainant states a valid claim because he claims that due to the Agency action, or inaction, he was unable to raise his challenges to that inaction within the OWCP forum. Ordinarily when we disagree with an Agency’s procedural dismissal, we remand for an investigation. In the instant case, however, the Agency has already conducted an investigation. Accordingly, we shall address Complainant’s claim on the merits based on the record before us. Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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 2019004597 4 actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination. We next find that the Agency articulated legitimate nondiscriminatory reasons for its actions when the Regional Administrator (RA:, Age 52, no claimed disability) averred that “we did not provide false and misleading information to OWCP but just stated the facts” and that “Complainant’s paperwork was submitted to OWCP. We have back and forth documents between the Agency and OWCP, which I will provide.” The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has failed to meet this burden. In his rebuttal statement to RA’s affidavit, Complainant averred that RA: [M]akes allegations regarding OWCP forms but has provided no evidence he is qualified to make such allegations, making his allegations hearsay. He alleges Complainant did not sustain an on-the-job injury but fails to provide any evidence that he is qualified to make such an allegation, thus it is hearsay. In addition, if he was remotely qualified, he did not provide any information regarding date, or other information, thus his allegation fails. He alleges not to be aware that Complainant alleged to suffer an on-the-job injury when he received a termination letter but fails to provide any evidence that his allegations are anything more than hearsay. When Complainant notified the agency of an on-the-job injury, the agency including [RA] had the opportunity to investigate the facts but chose to ignore the notification and falsify the documents and lie about the entire matter. He testified he is not aware of Complainant having PTSD but again his memory fails him as Complainant sent an e-mail addressed directly to him advising him of this diagnosis and requesting accommodation and he denied the request. Either he has memory problems or is a liar. He alleges Complainants paperwork was submitted to OWCP but has presented no evidence to prove he is even remotely qualified to have any knowledge regarding this subject, thus again he is consumed with hearsay. Contrary to Complainant’s allegations, however, the Agency has provided abundant evidence conclusively establishing that the Agency did in fact forward Complainant’s paperwork to the OWCP and that Complainant was able to successfully file numerous claims with that office. Specifically, the record shows that Complainant was successfully able to file at least eight original claims, or requests for reconsideration of prior denials, with the OWCP: on May 27, 2014, Complainant was able to file a claim regarding injuries he incurred on May 19, 2014; on June 17, 2014, Complainant was able to file a claim regarding an injury that occurred on May 19, 2014; on September 22, 2014, Complainant filed a claim regarding injuries he incurred on 2019004597 5 September 16, 2014; on the same date he also filed a claim regarding injuries he sustained on January 1, 2013; on December 26, 2014, Complainant sought reconsideration of the denial of his May 19, 2014 injury claim; on February 2, 2015, Complainant filed a claim regarding injuries he incurred on January 15, 2015; on March 28, 2015, Complainant filed a claim regarding injuries that he incurred on March 2, 2015; and on March 30, 2015, Complainant filed a claim regarding injuries that he incurred on March 23, 2015. As such we find that Complainant has not shown the Agency failed to forward his claims to OWCP. While Complainant disagrees with the information the Agency provided with the OWCP and believes it to be “hearsay,” we agree with the Agency that such a claim to constitutes a collateral attack on the OWCP process. As the Agency found, the proper forum for Complainant to raise his challenges to the testimony and evidence submitted by Agency officials in the processing of his OWCP claims was within those proceedings themselves, and in fact the record shows that Complainant availed himself of that opportunity on various occasions by filing requests for reconsideration with the OWCP on various decisions of theirs that he disagreed with. With regard to claims 2, 3, and 4, we note that our regulations hold that an agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, such as the complaint at issue here, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Following a review of the record, we find that the incidents alleged in claims 2, 3, and 4 are insufficiently severe and/or pervasive to alter the conditions of Complainant’s employment. With regard to reprisal, we find that the actions alleged are not the type of action that are reasonably likely to deter Complainant or others from engaging in protected EEO activity. We therefore find that these claims should be dismissed for failure to state a claim. 2019004597 6 Finally, with regard to claim 5, the Agency dismissed the claim on the grounds that it states the same claim as a previously-raised claim. The record reveals that following his removal from the Agency, Complainant appealed to the Merit Systems Protection Board (MSPB or Board) and the Board addressed his claim of denial of reasonable accommodation. We therefore find that the Agency’s dismissal was proper. CONCLUSION The FAD is AFFIRMED. 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). 2019004597 7 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 April 22, 2021 Date