[Redacted], Herman B., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jun 23, 2021

Appeal No. 2020003251 (E.E.O.C. Jun. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herman B.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020003251 Agency No. DON No.18-4523A-00588 DECISION On April 27, 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 March 28, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 applied for the position of Physical Science Technician, GS-1311-04/05, with the Agency’s Radiological Control at the Puget Sound Naval Shipyard in Bremerton, Washington. Complainant stated that he applied for the Physical Science Technician position on January 11, 2016, had a telephone interview on March 30, 2016, and was tentatively offered the position on April 11, 2016. Complainant asserted that the Administrative Officer (AO) was the selecting official and that she made the offer to him over the phone. Complainant stated that he later received the offer in writing from the Human Resources Specialist (HRS1). 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. 2020003251 2 Complainant claimed that on September 21, 2016, he sent a request to the Reasonable Accommodation Coordinator (RAC) seeking the following accommodations: an American Sign Language (ASL) interpreter for meetings, trainings, and work-related activities; extended exam time when necessary; a mini whiteboard for quick conversations; a note taker and ASL interpreter for the qualification school; one-on-one tutoring and clarification of unfamiliar and complex vocabulary and lengthy written information when necessary because English was not his first language; and reasonable accommodation for anything else in an aural format. He asserted he also indicated that he would discuss phone and video remote interpreting when he arrived at the shipyard. Complainant claimed that RAC subsequently left the Agency, and the EEO Specialist (ES) took over and denied his request without engaging in the interactive process with him. Complainant and the Agency engaged in the interactive process on December 12, 2016. Complainant stated that prior to the call he was emailed a description of the essential functions of the Physical Science Technician position. Complainant stated that he was asked during the call whether he could perform these essential functions with or without accommodation, and he responded that he could. Complainant claimed that he told management that he needed accommodation because he could not obtain information in an aural format. Complainant asserted that he also needed an accommodation for instruments that gave an audible response. Complainant affirmed that AO said the Agency was working to obtain an instrument that would accommodate him, but it would take years to obtain it from a vendor. He maintained that he asked management not to withdraw the tentative job offer, and they assured him they would not rescind the offer. In a letter dated April 3, 2017, the Head of the Radiological Monitoring Division (HRMD) notified Complainant that his request for accommodation was denied. The HRMD stated that there was no accommodation available that would enable him to perform the essential functions of the position. HRMD noted that some of the essential functions identified would require Complainant to visually and orally observe and monitor site conditions, rapidly respond to events communicating information, orally announce events to personnel in the immediate area, set priorities and give immediate directions similar to an incident commander. HRMD stated that Complainant’s inability to respond rapidly to both visual and oral indicators and be able to communicate would preclude qualification and inhibit the Agency's ability to respond to out of the normal events. AO affirmed that in order to accommodate Complainant, the Agency would have to hire another one or two full-time employees to attend the six-month long training that is required for all employees to attend. AO added that that Complainant’s inability to hear would put not only himself in danger but other employees and the general public at risk. AO testified that all employees have to be able to hear audible alarms, possible leaks, and other people. AO noted that if an employee is unable to hear an alarm, whether it be a mechanical alarm or another employee yelling "fire" as an example, Complainant would not be able to react, putting his life in danger. 2020003251 3 Complainant alleged that he contacted the Personnel Security Specialist (PSS) around November 29, 2017, to ask for copies of documents he had submitted for his security clearance background investigation. Complainant stated he then learned that the job offer had been withdrawn. He alleged that he had not been informed that the job offer had been withdrawn until HRS1 sent him an email on January 18, 2018. On March 21, 2018 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (Ethiopian), color (black), disability (deafness), and reprisal (prior protected EEO activity) when: (1) on November 29, 2017, he learned his tentative offer for a Physical Science Technician position was withdrawn; (2) on November 29, 2017, he was denied a reasonable accommodation; (3) on unspecified dates between April 2016 and March 2018, the EEO Specialist (ES), the Administrative Officer (AO), and other Human Resources engaged in practices that discouraged him from pursuing accommodations; and (4) between April 2016 and March 2018, ES, AO, and other Human Resources personnel subjected him to unwelcome treatment and negligence during the pre-employment process, deprived of effective communication, the process was stalled, his emails and phone calls were ignored, and he was not notified of the withdrawal of the tentative job offer for several months. 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 EEOC Administrative Judge. 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. Complainant filed the instant appeal without submitting any arguments or contentions in support. 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”). Denial of Reasonable Accommodation A person claiming discrimination on the basis of a disability must show as a threshold matter that he was a qualified individual with a disability. EEOC Regulation 29 C.F.R. § 1630.2(g) defines an individual with a disability as one who has a physical or mental impairment which substantially limits one or more of such person's major life activities; has a record of such an 2020003251 4 impairment; or is regarded as having such an impairment. Here, it is undisputed that Complainant is an individual with a disability as a result of his prosthetic hip. In order to show that he was “qualified,” Complainant must show that he can perform the essential functions of the position in question, with or without reasonable accommodation, and that he meets the experience or education requirements of the position. 29 C.F.R. § 1630.2(m). Under the facts presented here, a determination must also be made as to whether the individual poses a danger to self or others. We agree with the analysis and findings set forth in the Agency’s final decision. Here, the evidence of record supports a finding that Agency officials had a reasonable belief, based on objective evidence, that Complainant was not qualified for the position of Physical Science Technician because he posed a direct threat to himself due to his hearing impairment. See Enforcement Guidance, Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (ADA) (March 1, 1999) (Guidance), at question 38 (“if an employee with a disability, with or without reasonable accommodation, cannot perform the essential functions of the position, or poses a direct threat in the absence of medication, treatment, or an assistive device, then s/he is unqualified”). Here, following an individualized assessment, Agency officials reasonably concluded that Complainant was a “direct threat” because his placement in the position would have constituted a significant risk of substantial harm to himself and others. Specifically, Complainant was unable to audibly observe and monitor site conditions. During emergent conditions, Complainant was not able to rapidly respond to events by orally communicating information, setting priorities and giving direction to personnel in the immediate area and others via walkie-talkie.2 Furthermore, we agree that Complainant failed to demonstrate that a reasonable accommodation existed that could enable him to perform the essential functions of the position without constituting an undue hardship to the Agency as discussed above. Accordingly, the Commission finds that the Agency did not deny Complainant a reasonable accommodation in violation of the Rehabilitation Act. 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 (1973). Complainant must initially establish a prima facie case by demonstrating that 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. 248, 253 (1981). 2 Complainant could not give oral direction under these conditions. His main language was American Sign Language, which was a non-verbal visual language with different grammar, syntax, and vocabulary than English. 2020003251 5 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Assuming, arguendo, Complainant established a prima facie case of discrimination and reprisal, the Agency provided legitimate, nondiscriminatory reasons for its actions as set forth above. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. We find the record devoid of evidence to support the assertion that any Agency official acted with animus toward Complainant based on his protected classes. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination or reprisal as alleged. CONCLUSION After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence does not establish unlawful discrimination as alleged by Complainant. 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. 2020003251 6 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. 2020003251 7 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 23, 2021 Date