[Redacted], James S., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jul 29, 2021

Appeal No. 2020002882 (E.E.O.C. Jul. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 James S.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020002882 Hearing Nos. 420-2019-00089X 420-2019-00137X Agency Nos. 8V0J1740887 8V0J1800071 DECISION Complainant timely 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 final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented are: (1) whether there are genuine issues of material fact that require a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ); (2) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination based on his protected classes; (3) whether Complainant established that the Agency improperly subjected him to a Fitness-for-Duty Examination; and (4) 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. 2020002882 2 whether Complainant established that the Agency subjected him to a hostile work environment, as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Training Instructor, GS-09, at the Agency’s 336 Training Readiness Squadron (TRS), Keesler Air Force Base, Mississippi. Complainant filed an EEO complaint on September 28, 2017, as amended, alleging that the Agency discriminated against him and harassed him on the bases of perceived disability (physical and mental) and age (46) when: 1. On November 2, 2016, he was harassed by being accused of being late to work; 2. On November 2, 2016, through the present he was subjected to continuous hostile working conditions; 3. On November 9, 2016, he was harassed by being pressured to come to work sick; 4. On November 10, 2016, he was harassed by being threatened with a reprimand and a termination as well as being yelled at; 5. On March 31, 2017, he received an annual performance appraisal with an ineffective rating; 6. On May 31, 2017, his first-level supervisor (S1), recommended a Fitness-for- Duty Examination; 7. On June 25, 2017, the Major shared private personal email correspondence with S1; 8. On June 26, 2017, S1 attempted to terminate him; 9. On July 12, 2017, S1 removed him from the podium (teaching) despite being declared fit-for-duty on June 6, 2017; 10. On July 18, 2017, he was harassed by being banned from the 335 TRS; 11. On July 18, 2017, he was denied leave; and 12. On August 17, 2017, the Chief, Communications and Information Flight (the Chief), issued him a Notice of Decision to Suspend for two calendar days. 2020002882 3 Complainant filed a second EEO complaint on December 15, 2017, alleging that the Agency discriminated against him based on reprisal for prior protected EEO activity2 when: 13. On October 24, 2017, S1 removed him from the podium (teaching) due to an investigation without given him a reason; and 14. On November 8, 2017, the Captain gave him a verbal admonishment for coaching students on the end of a course survey. Following the investigations, the Agency provided him with copies of the reports of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s November 26, 2019, motion for a decision without a hearing and issued a decision without a hearing on January 8, 2020. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). CONTENTIONS ON APPEAL Complainant’s Brief on Appeal On appeal, Complainant, through his attorney, contends that the Agency regarded him as an individual with a disability, and therefore he is entitled to the coverage of the Rehabilitation Act. Complainant specifically maintains that S1 and the Chief, in response to him taking sick leave, pressured him into cancelling his sick leave and then reprimanded him for not being able to come into work sick. Complainant asserts that he was publicly humiliated and threatened with termination for being sick. Complainant maintains that S1 and the Chief were tracking his sick leave usage for a year and were clearly annoyed with the amount of time he took off work. Complainant also argues that the Agency’s express language in its Fitness-for-Duty Examination documentation that he had suspected physical and mental impairments clearly demonstrates that the Agency regarded him as an individual with a disability. Complainant maintains, also, that management did not follow Agency regulations with respect to his suspension and his annual performance appraisal wherein he received an ineffective rating. Complainant asserts that S1 advocated for his removal from his position without doing an investigation and without affording him due process. 2 Complainant alleged that he was subjected to reprisal based on his September 28, 2017, EEO complaint. 2020002882 4 Complainant maintains, moreover, that management’s allegations regarding his teaching conduct were inaccurate and misleading, as instructors like him were constantly having to cover more classes than possible. Complainant asserts that management relied on one misleading statement from a low-level student in suspending him. Complainant additionally maintains that S1 subjected him to a hostile work environment, as other employees witnessed S1 yelling at him for taking sick leave. Complainant maintains, moreover, that he was clearly subjected to reprisal by management when he was suspended from his instructor duties and received an oral admonishment. Complainant contends that the investigation into allegations that he coached students exonerated him. He further contends that the Captain falsely stated to him that he in fact did coach his students and then refused to provide him with a copy of the investigation. Agency’s Response In response, the Agency maintains that there is no evidence of discrimination based on Complainant’s age or perceived disability. The Agency specifically argues that all instructors are over the age of 40 and there is no evidence that any instructors made any disparaging comments about Complainant’s age. The Agency maintains that they were unaware of any disability attributed to Complainant, and that management never observed any evidence that Complainant was in fact disabled. The Agency also asserts that its actions towards Complainant had nothing to do with his protected EEO activity but were due to his improper coaching of students and his negative instructor end of course survey. The Agency asserts that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not establish that its reasons were pretextual based on his age or perceived disability. The Agency maintains, moreover, that Complainant did not establish that he was subjected to a hostile work environment, as he did not establish that the Agency was motivated by discriminatory or retaliatory animus. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency's final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis -- including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 2020002882 5 of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Summary Judgment We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). After a review of the record, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. We find that there are no genuine issues of material fact in dispute presented here. 2020002882 6 The record has been adequately developed, Complainant had the opportunity to engage in discovery, he was given notice of the Agency's motion to issue a decision without a hearing, and he was given an opportunity to respond. Disparate Treatment To prevail in a disparate treatment claim, 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 he 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. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo that Complainant established a prima face case based on his protected classes, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. For example, S1 explained that on November 2, 2016, Complainant called to inform him he was running late with no valid excuse and then reported for work an hour late. ROI, No. 8V0J1740887, at 715. S1 also averred that on November 3, 2016, Complainant again reported for work an hour late. Id. S1 additionally attested that Complainant called-in on November 9, 2016, saying that he hit a deer on the way to work but had a second vehicle at his home and would be in as soon as he could. Id. at 716. S1 explained that Complainant came to work around 8:00 a.m., but he came to his office later that morning explaining that he had a doctor’s appointment but would be back at noon to cover his class. Id. S1 attested that Complainant then never came back to work and never called, so he phoned Complainant at least a dozen times but Complainant never answered. Id. S1 averred that Complainant later apologized, explaining that the reason he never returned was because he fell asleep at a friend’s home. Id. S1 further explained that on March 15, 2017, an Instructor conducted a classroom evaluation of Complainant’s performance in the classroom, and Complainant received an overall "needs improvement" rating in seven areas. Id. at 717. S1 averred, moreover, that Complainant was removed from the classroom pending an investigation by the Training Squadron Commander due to several student complaints about Complainant’s teaching that were made through student surveys. Id. S1 additionally stated that Complainant received a “does not meet” rating on his performance appraisal due to being late for work on multiple occasions during the rating period, among other things. Id. at 717-18. Also, according to the Chief, on July 18, 2017, he denied Complainant's leave request because Complainant's help was needed identifying lost equipment on an Information Technology (IT) account. Id. at 774. 2020002882 7 The Chief additionally stated that he made the decision to suspend Complainant for two calendar days due to student surveys and student statements regarding Complainant’s conduct in the classroom, which included Complainant discussing unprofessional topics with students, among other things. Id. at 774-75. With regard to claims 13 and 14, the Captain explained that an investigation found that Complainant coached students on what to say on a survey given to them. ROI No. 8V0J1800071, at 22. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant asserts, in pertinent part, that the Agency took actions based on his perceived disability due to his sick leave usage. Complainant states that management threatened him with termination over his use of leave and accused him of tardiness despite being a highly successful employee for many years. Complainant maintains, also, that management did not follow Agency regulations with respect to his suspension and his annual performance appraisal wherein he received an ineffective rating. Complainant further asserts that management only relied on one misleading statement by a low-level student to justify suspending him. Complainant contends that the investigation into allegations that he coached students exonerated him. He further contends that the Captain falsely stated to him that he in fact did coach his students and then refused to provide him with a copy of the investigation. Upon review, notwithstanding Complainant’s contentions herein, we find that he has not established that the Agency reasons were pretextual based on his protected classes. There is no dispute that Complainant arrived to work late and did not show up for work on occasions. We specifically note that there is no dispute that Complainant did not return to work on November 9, 2016, and did not call-in to work, after assuring S1 that he would return to cover his class. We find that the record in this case corroborates the Agency’s assertions that Complainant was having issues with time and attendance and was not performing well in the classroom. For example, we note that a student in critiquing Complainant’s teaching specifically wrote in pertinent part: Our teacher was not found most mornings before 0730. [L]eft the classroom often with no instruction for the students and returned most times after lunch. When our instructor was in class we usually were not undergoing any block material but sitting and waiting for class to start. It almost seemed it was an inconvenience to teach us. ROI No. 8V0J1740887, at 106. We also note that multiple management officials and at least one student attested that Complainant was accused of coaching students on surveys and not exhibiting proper conduct while teaching. 2020002882 8 Based on a thorough review of the record, we find that Complainant has not established that the Agency’s reasons were pretextual or that the Agency was motivated by discriminatory or retaliatory animus. Fitness for Duty Examination (Claim 6) Under Commission regulations, a fitness for duty examination may be ordered only if it is job- related and consistent with business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). This means that the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of his or her job or pose a direct threat because of a medical condition. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Enforcement Guidance on Disability-Related Inquiries), No. 915.002 (July 27, 2000) at Q.5. In the instant case, we find that Complainant has not established that the Agency violated the Rehabilitation Act when he was required to undergo a Psychiatric Fitness-for-Duty Examination on June 6, 2017. In so finding, we note that the Agency received objective evidence that Complainant’s ability to perform the essential job functions of his position may have been impaired by a mental condition and/or that he may have posed a direct threat because of a mental condition. The record specifically reflects that management received reports that Complainant walked-off his job, intimidated students, and left a distressed message on the classroom board for his students on March 16, 2017. ROI No. 8V0J1740887, at 30. The record also shows that management received a report that Complainant walked out of his classroom the next day on March 17, 2017, stating he was done “with this shit” and several students were seen crying and shaking. Id. In addition, we note that the record contains a lengthy letter from Complainant, which was forwarded to the Agency wherein Complainant wrote that he was under a lot of “mental and physical strife,” among other things. Id. at 156-57. As such, we find that Complainant has made no showing that the Agency violated the Rehabilitation Act with respect to claim 6. Hostile Work Environment To the extent that Complainant is alleging that he was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2020002882 9 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 order. 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). 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. 2020002882 10 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 July 29, 2021 Date