[Redacted], Janet O.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Feb 25, 2021

Appeal No. 2019001406 (E.E.O.C. Feb. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cyrus H.,1 Petitioner, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Petition No. 2021000173 MSPB No. PH-0752-20-0068-I-1 DECISION On October 3, 2020, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of 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. For the following reasons, we CONCUR with the MSPB’s ultimate decision that Petitioner did not establish that the Agency discriminated against him. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Information Technology (IT) Specialist, GS-2210-09, at the Agency’s Tobyhanna Army Depot in Tobyhanna, Pennsylvania. The record reflects that Petitioner joined the Depot in 2003, where he assisted customers at the IT Help Desk. On September 16, 2007, the Agency reassigned Petitioner to an IT Specialist (Network) position. In this position, Petitioner worked behind the scenes and did not have to provide customer support. On November 28, 2007, Petitioner filed a formal EEO complaint alleging that he had been subjected to discrimination. 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2021000173 2 The parties entered into a negotiated settlement agreement (NSA) on December 12, 2007. Under the terms of the NSA, the Agency agreed, in relevant part, to allow Petitioner to continue performing the duties of the IT Specialist (Network) position. In June 2013, the Agency reassigned Petitioner from the “Networking Cell” to the Visual Information shop. The following year, in May 2014, the Agency changed Petitioner’s position description from IT Specialist (Network) to IT Specialist (Customer Support). Petitioner objected to the reassignment on the grounds that he did not have the temperament to work in a customer service-oriented job, as he experienced anxiety and fatigue when interacting with people. He also contacted the EEO Office to complain about the Agency’s failure to comply with the terms of the NSA. On November 25, 2014, the Agency issued a final decision finding no breach of the NSA. On January 22, 2016, Petitioner filed a formal EEO complaint alleging, in relevant part, that the Agency subjected him to discrimination based on discrimination when it denied his reasonable accommodation request to reassign him away from the Help Desk. On June 8, 2017, the parties entered into another NSA,2 wherein the Agency agreed to reassign Petitioner to a 120-day detail as a GS-2210-09 IT Specialist to work Host Base Security Systems (HBSS), local area network (LAN) drops, and cybersecurity issues. As that position was not customer service oriented, Petitioner would not have to regularly engage with people. The terms of the NSA required Petitioner to provide the Agency with satisfactory medical documentation within 120 days from the execution of the agreement to substantiate his need for reasonable accommodation. However, Petitioner never provided the Agency with any medical documentation. On November 29, 2018, one of colleagues (Witness-1 [W1]) coughed loudly near Petitioner’s workspace with an uncovered mouth. In response, Petitioner went to W1’s workspace and coughed loudly near W1 with an uncovered mouth. Petitioner then started yelling profanities at W1 and invited W1 to meet him off the base to settle the conflict. A nearby colleague (W2) objected to Petitioner’s intentional coughing fit, as he had a medically-fragile son. However, Petitioner told W2 to stay out of his conflict with W1. Petitioner then went to a unit supervisor’s (Chief of Network Operations Branch) office to complain. The supervisor recalled Petitioner stating that he had guns and was willing to go off base to handle the situation. The supervisor also recalled Petitioner saying that he knows how to use Google to find where people live. To diffuse the situation, the supervisor offered Petitioner administrative leave, but Petitioner declined the offer and returned to work. The following day, the Agency placed Petitioner on paid administrative leave pending an internal investigation into the incident that transpired with W1 and W2. During the internal investigation, the Agency obtained numerous statements from Petitioner’s colleagues. These statements revealed that Petitioner had previously been involved in numerous other altercations with his colleagues. 2 Prior to Petitioner’s January 2016 EEO complaint, Petitioner filed another EEO complaint on April 28, 2015, wherein he alleged that the Agency discriminated against him when it suspended him and did not select him for a position. That complaint was also resolved in the June 8, 2017 NSA. 2021000173 3 Upon the conclusion of the internal investigation, the Agency proposed to remove Petitioner from federal service. The Notice of Proposed Removal dated January 22, 2018, charged Petitioner with the following offenses: 1) making statements that caused anxiety and disruption in the workplace and violating Tobyhanna Army Depot Policy Memorandum No. 13 - Violence in the Workplace; and 2) conduct unbecoming a federal employee. Petitioner timely replied to the proposed removal. In his reply, Petitioner asserted that the allegations against him were exaggerated, false, fabricated, and defamatory. Petitioner further alleged that his colleagues were prejudiced against him. Although the Agency considered Petitioner’s reply, the Agency found that Petitioner’s removal would promote the efficiency of the service. The Agency’s Notice of Removal dated March 19, 2019, notified Petitioner that he would be removed from federal service on March 20, 2019. Petitioner remained on administrative leave until the effective date of his removal. Following his removal, Petitioner filed a mixed case complaint challenging the Agency’s removal action. In the complaint, Petitioner alleged that the Agency subjected him to discrimination on the bases of race (Asian), national origin (Laos), disability (mental), age (over 40), and reprisal for prior protected EEO activity when it removed him from federal service. The matter was accepted for investigation. During the pendency of the EEO investigation into his complaint, Petitioner filed a claim for unemployment benefits. While the Unemployment Referee (Referee) acknowledged that there was a conflict between the hearing testimony of Petitioner and the Agency’s witnesses, the Referee resolved the conflict in the Agency’s favor. The Referee ultimately concluded that Petitioner was not entitled to unemployment benefits because Petitioner had been removed for “willful misconduct.” After the completion of an EEO investigation into the complaint, the Agency issued a final decision finding that Petitioner was not subjected to discrimination as alleged. Petitioner appealed the Agency’s final decision to the MSPB. On February 13 and 20, 2020, the assigned MSPB Administrative Judge (AJ) held a hearing into the matter. During the hearing, Petitioner recounted the events that transpired on November 29, 2018, when he went to W1’s workspace, coughed near W1, and asked W1 if he wanted to “take things outside.” Petitioner emphasized that he did not start the conflict, as in the days prior to November 29, 2018, W1 had repeatedly coughed and burped near him. When both W1 and management failed to respond to his concerns, Petitioner ultimately decide to take the matter in his own hands and treat W1 in the same as he treated Petitioner. Petitioner emphasized that his only intent on November 29, 2018, was to defend himself against W1. He also emphatically denied making any reference to guns or saying that he knew how to use Google to find where people live. Petitioner surmised that the removal action was based on his protected characteristics because his supervisor (Information Management Division Chief), in investigating the incident, repeatedly made references to his military service and mental state. Furthermore, Petitioner argued at the hearing that the Agency was also at fault because management knew that he had difficulties interacting with people, but still denied his request for reasonable accommodation request to be moved away from the Help Desk. For these reasons, Petitioner sought reversal of the Agency’s removal action. 2021000173 4 Following the hearing, the MSPB AJ issued an initial decision affirming Petitioner’s removal. In finding no discrimination, the MSPB AJ relied upon the MSPB’s decision in Savage v. Dep’t of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB’s authority to adjudicate and remedy alleged violations of 42 U.S.C. § 2000e-16 is a matter of civil service law. Id. The decision reflects that the MSPB AJ initially considered Petitioner’s affirmative defense that the Agency’s removal action was due to his race, national origin, and age. However, the MSPB AJ concluded that Petitioner offered no evidence giving rise to an inference that his removal was due to illegal discrimination as Petitioner cited to no similarly-situated employees who engaged in similar inappropriate conduct but were treated more favorably. The MSPB AJ also found that the record was devoid of any evidence showing that Petitioner’s race, national origin, and age were motivating favors in his removal. As for Petitioner’s affirmative defense of discrimination based on disability, the MSPB AJ found that the Agency did not fail to reasonably accommodate Petitioner, as the record showed that the Agency detailed Petitioner to a different IT Specialist position in accordance with the terms of the EEO settlement agreement executed on June 18, 2017. In this regard, the MSPB AJ noted that while the EEO settlement required Petitioner to submit medical documentation to be permanently assigned to his detailed position, Petitioner failed to do so despite repeated requests from the Agency. Moreover, the MSPB AJ noted that Petitioner was still working in his detailed position when he was placed on administrative leave pending removal. Finally, regarding Petitioner’s hostile work environment claim, the MSPB AJ found no evidence that Petitioner had been subjected to an actionable hostile work environment. The decision became the final decision of the MSPB on September 13, 2020. This petition followed. ARGUMENTS IN PETITION Through his attorney at the time, Petitioner argues that the Agency subjected him to discrimination when in May 2014, it reassigned him to customer support duties. In this regard, Petitioner asserts that he was the only non-Caucasian individual who was forced out of his regular duties. He maintains that this reassignment affected his employment by forcing him to request a reasonable accommodation in 2017. Petitioner maintains that the Agency treated a Caucasian male, namely Comparator-1 (C1), more favorably by reassigning that individual from the Customer Support Branch to the Network Operations Branch without competition. 2021000173 5 Petitioner also asserts that when the Agency reassigned him to the Network Operations Branch as part of the reasonable accommodation process, his workplace changed from a private cubicle to a “community work setting” where his colleagues played loud music, coughed, and burped. He contends that these noises amounted to a hostile work environment, which his managers refused to address. As for the removal action, while Petitioner admits to having engaged in a verbal altercation with W1 and W2, he again vehemently denies threatening anyone in any manner. He asserts that his colleagues falsely accused him of engaging in threatening behavior. Petitioner also argues that the Agency treated a Caucasian male, Comparator-2 (C2), more favorably by entering into a Last Chance Agreement with that individual and allowing him to enroll in an anger management problem. He maintains that this double standard amounted to disparate treatment. Furthermore, Petitioner asserts that he notified the Agency that three employees were harassing him, but the Agency took no action against these individuals. He maintains that “regardless of who initiated or escalated the various altercations, the record support that [he and the three employees] engaged in the same inappropriate and unprofessional conduct and hostility to a large degree” but only he was charged. Petitioner questions why the Agency treated him in a disparate manner and allowed the harassment to continue unabated. In arguing that the Agency subjected him to discrimination and reprisal, Petitioner emphasizes that law enforcement investigated the verbal altercation but found that there was insufficient evidence to meet the elements of a crime. He asserts that the Agency hid the “report of law enforcement investigation from [him], his attorney, and the referee.” Petitioner requests that the Commission rule in his favor. The Agency opposes the petition and requests that the Commission concur with the MSPB. STANDARD OF REVIEW EEOC regulations provide that the Commission has jurisdiction over mixed-case complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. § 1614.305(c). ANALYSIS AND FINDINGS Denial of Reasonable Accommodation We will first analyze Petitioner’s claim that he was denied a reasonable accommodation. Under the Commission’s regulations, an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause 2021000173 6 an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See Enforcement Guidance; see also Abeijon v. Dep’t of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Assuming, arguendo, that Petitioner was a qualified individual with a disability, we conclude that the Agency did not fail to reasonably accommodate his disabilities. Our review of the record here shows that on June 8, 2017, Petitioner entered into an NSA with the Agency regarding his request for reasonable accommodation. Under the terms of this agreement, the Agency detailed Petitioner to a different IT Specialist position. In turn, Petitioner was required to provide medical documentation to corroborate his claimed need for reassignment due to his inability to work in customer support. In his brief before the Commission, Petitioner admitted that he never complied with the NSA’s requirement to provide medical documentation because he was in the process of appealing the NSA. Having reviewed the record, we find that the Agency properly accommodated Petitioner by transferring him from a customer service-oriented IT Specialist position to a behind the scenes IT Specialist position to address his asserted disability. While we acknowledge Petitioner’s contention that he had no obligation to provide medical documentation to remain in the detail position, we need not address that contention, as the record clearly shows that the Agency allowed Petitioner to remain in the position, despite Petitioner’s failure to provide the requested medical documentation. Given the facts in this case, we find no violation of the Rehabilitation Act. Disparate Treatment and Harassment We turn now to Petitioner’s contention that the Agency treated him in a disparate manner when the Agency removed him from federal service but failed to take any action against individuals who were allegedly harassing him by playing loud music, coughing, and burping. As an initial matter, we find that the MSPB AJ erred by not applying the analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), when deciding Petitioner’s claims of discrimination based on race. We will analyze this case according to the McDonnell Douglas paradigm. See Raphael C. v. Dep’t of Veterans Affairs, EEOC Petition No. 0230160016 (May 10, 2016). In this regard, Petitioner 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. Co. 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 804 n. 14. 2021000173 7 To establish a prima facie case of disparate treatment on the basis of race, national origin, and age, Petitioner must show that he (1) is a member of a protected class; (2) was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) was treated differently than similarly situated employees outside her protected class, or there is some other evidentiary link between her membership in a protected class and the adverse employment action. McCreary v. Dep’t of Def., EEOC Appeal No. 0120070257 (Apr. 14, 2008); Saenz v. Dep't of the Navy, EEOC Request No. 05950927 (Jan. 9, 1998). To establish a prima facie case of disability discrimination under a disparate treatment theory, Petitioner must demonstrate that: (1) he is an “individual with a disability” (2) he is “qualified” for the position held or desired; (3) he was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination and/or denied a reasonable accommodation. See Josiah M. v. U.S. Postal Serv., EEOC Appeal No. 2019003865 (Feb. 14, 2020). To establish a prima facie case of disparate treatment on the basis of reprisal, Petitioner must show that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132503 (Aug. 28, 2014), citing Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Petitioner must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming, arguendo, that Petitioner established a prima facie case of discrimination on the alleged bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. As reflected in the Notice of Removal, the Agency removed Petitioner for the following reasons: 1) making statements that caused anxiety and disruption in the workplace and violating Tobyhanna Army Depot Policy Memorandum No. 13 - Violence in the Workplace; and 2) conduct unbecoming a federal employee. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Petitioner now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. See, e.g., Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). 2021000173 8 As discussed above, Petitioner offered numerous arguments as to why he believed that the Agency’s articulated reasons were pretextual. We incorporate these arguments by reference. After careful consideration, we find that Petitioner cannot persuasively establish pretext. In reaching this conclusion, we considered Petitioner’s numerous contentions, including his contention that his colleagues made false and defamatory accusations about him. However, we remain unpersuaded. The bottom line remains that Petitioner admitted to engaging in a verbal altercation with W1 and W2 on November 29, 2018. While we acknowledge that there is a dispute as to whether Petitioner threatened his colleagues on November 29, 2018, we note that the MSPB AJ held a hearing into the matter and found that Petitioner “intentionally coughed on [W1], then engaged in a profanity-laced outburst, and subsequently uttered the guns and Google comments to [the unit supervisor].” These findings are consistent with the findings of the Referee. To the extent Petitioner contends that the Agency provided the Referee an incomplete record by failing to provide him with the law enforcement report, we find that contention to be unpersuasive, as the report did not clear Petitioner of the allegations.3 We also find no evidence that Petitioner was treated less favorably than similarly-situated individuals. Indeed, we note that Petitioner has not identified anyone who threatened to use a gun on colleagues but was not fired. Having reviewed the record, we conclude that the Agency did not discriminatorily remove Petitioner from federal service. We are also unpersuaded by Petitioner’s contention that he was subjected to a hostile work environment when his colleagues played loud music, coughed, and burped, and management failed to act on his complaints. Generally, to prevail on a claim of harassment/hostile work environment, a petitioner must show that: 1) he or she belongs to a statutorily protected class; 2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; 3) the harassment complained of was based on his or her statutorily protected class; 4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). We will assume arguendo that the alleged incidents occurred as Petitioner described and were unwanted. While we certainly understand that Petitioner felt uncomfortable by his colleagues’ actions, we find that Petitioner has not persuasively shown that the alleged incidents were related to his protected characteristics. To the extent Petitioner believes that his colleagues used their bodily functions to annoy him, we note that anti-discrimination laws are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Petitioner has failed to do so here. 3 As discussed above, the law enforcement report simply stated that “elements did not meet the crime for harassment.” 2021000173 9 CONCLUSION Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB’s decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole. PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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. 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 Petitioner’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 February 25, 2021 Date