[Redacted], Kelley P., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Nov 8, 2021

Appeal No. 2020003594 (E.E.O.C. Nov. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kelley P.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2020003594 Agency No. DOS-0216-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 29, 2020, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue is whether Complainant established that the Agency discriminated against him based on disability when it denied his request for a reasonable accommodation and terminated his employment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Local Security Guard at the Agency’s U.S. Consulate (now U.S. Embassy) in Jerusalem, Israel. Complainant’s first-line supervisor (S1) stated that on December 21, 2014, Complainant was hit by a car while on duty. According to S1, on August 3, 2015, he received a referral from the 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. 2020003594 2 Health Unit to allow Complainant to remain in a seated position, with no standing or heavy lifting, for three months before a reassessment of his progress. S1 stated that when Complainant returned to work, he was only assigned to sitting positions and was accommodated since August 2015. Report of Investigation (ROI) at 257, 260. On May 10, 2018, Complainant stated that he met with S1 and his second-line supervisor (S2) to discuss Complainant’s return to his security duties, and that S2 “suggested” that Complainant provide medical documents regarding his ability to perform his duties. ROI at 90. S2 averred that Complainant was advised to return to normal duties, pending the direction of his medical provider. ROI at 229. On June 26, 2018, S1 and S2 contacted a Human Resources Officer (HRO) to initiate the termination of Complainant’s employment because Complainant had been unable to perform his job duties since his return to work in August 2015. ROI at 274. On July 5, 2018, HRO informed Complainant of a separation hearing due to his inability or unwillingness to fulfill the requirements of his security guard position. Specifically, these duties included: performing patrols; walking or standing for long periods; and working at the main building2. HRO stated that Complainant would have an opportunity to present any relevant information prior to a final decision. ROI at 272-3. Complainant stated that he brought his medical documents to his separation hearing on July 11, 2018. ROI at 90. On July 20, 2018, HRO notified Complainant that the Agency was terminating his employment, effective August 19, 2018. Complainant was instructed not to report for duty and informed that he would be paid for that period. ROI at 271. On May 2, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (mental and physical) when: 1. on August 19, 2018, he was terminated from his position as a Local Guard at the U.S. Consulate in Jerusalem; and 2. as recently as July 11, 2018, he was denied a reasonable accommodation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant did not establish a prima facie case of discrimination because he did not show that he was a qualified individual with a disability. The Agency noted that Complainant acknowledged he was no longer able to perform the essential functions of his Local Security Guard position. 2 Complainant purportedly could not work at the main building due to his phobias and fears. 2020003594 3 In addition, the Agency found that there was no evidence that the it exhibited discriminatory animus in its treatment of Complainant; treated a non-disabled employee more favorably; or denied Complainant a reasonable accommodation with a discriminatory motive. Nevertheless, the Agency proceeded with its analysis and assumed, arguendo, that Complainant had established a prima facie case of disability discrimination. It found that management officials articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant was no longer able or willing to perform the essential functions of the position, and he did not provide the necessary updated medical documentation to continue his previously approved reasonable accommodation. Further, the Agency determined that Complainant did not prove pretext for discrimination nor provide witness testimony or other evidence to corroborate his version of events. The Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. Complainant filed the instant appeal. He submitted a statement in support of his appeal, as well as English translations of his medical documents. The Agency did not submit any contentions on appeal. CONTENTIONS ON APPEAL On appeal, Complainant asserts that he is a qualified individual with a disability, and therefore, entitled to a reasonable accommodation. Complainant states that he performed his essential functions, in a manner above and beyond, for the five weeks before his accident. Moreover, Complainant argues that the position description’s use of “may” and “or”, regarding the listed duties, shows that he could perform the duties. For example, “duties may include either walking or stationary post, performed on a rotating shift basis.” Complainant states that, with his reasonable accommodation of a chair, he was able to perform the basic functions, as supported by his satisfactory performance rating signed by S1 and S2. Complainant denies stating he was unwilling to perform his duties, but rather contends that he stated he wanted to say “yes”, but that he “physically cannot.” According to Complainant, his managers did not want to reassign him to a vacant position as a reasonable accommodation. STANDARD OF REVIEW 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 Chap. 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”). 2020003594 4 ANALYSIS AND FINDINGS Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). Complainant stated that he is restricted in his ability to walk, stand, bend, and lift. Specifically, he is only able to walk at a slow pace for no more than eight minutes and he cannot stand for more than eight minutes. ROI at 92. However, we find that Complainant’s recent medical documentation does not support these limitations. While Complainant’s earlier medical documentation, dated June 30, 2017, stated that Complainant is unable to stand beyond 5-8 minutes and that he is able to walk 7-8 minutes, the May 23, 2018 medical document only described knee pain, with difficulty getting up from a chair and going up stairs. The May 2018 document did not identify any standing or walking limitations. However, assuming, for the purpose of analysis and without so finding, that Complainant is an individual with a disability, we find that Complainant has not shown that he is a qualified individual. On appeal, Complainant argues that the position description’s use of “may” and “or”, in reference to the job duties, establishes that he could perform the duties. Our review of the position description, however, reveals that Complainant only addressed the basic functions. Specific major duties include Perimeter Security conducted by “foot patrols,” which accounts for 20% of the responsibilities. The remaining duties are Access Control (70%), which includes inspecting vehicles for dangerous items, and Miscellaneous Duties/Responsibilities (10%). ROI at 243-4. According to S2, vehicle screenings cannot be performed from a seated, static position. ROI at 237. Complainant contends that, with his reasonable accommodation of a chair, he was able to perform the basic functions, as evidenced by his satisfactory performance rating. However, the record shows that Complainant’s most recent performance appraisal, which does state he was able to screen vehicles, was issued on January 5, 2018. ROI at 215-16. There is evidence that, after January 5, 2018, Complainant was unable to perform his duties of inspecting vehicles or standing. For example, on June 26, 2018, S1 was notified that Complainant expressed he was not physically fit enough to perform the vehicle inspections or stand as requested. ROI at 278. 2020003594 5 In addition, Complainant attested that he is unable to do patrols; walk or stand for long periods of time; work night shifts; work at the facility near his accident; or lift the hood of a car for inspection. ROI at 93. As such, we find that Complainant is not a qualified individual with a disability. To the extent that the Agency previously accommodated Complainant, we note that an agency is not required to remove any of the essential functions of a position as a reasonable accommodation. See Enforcement Guidance, General Principles; see also Larraine S. v. Dep’t of Agric., EEOC Appeal No. 0120180647 (Aug. 15, 2019); Carlton T. v. Dep’t of the Navy, EEOC Appeal No. 0120151566 (Feb. 7, 2018); Timika O. v. Dep’t of the Navy, EEOC Appeal No. 0220140008 (Mar. 9, 2017). The record shows that the Agency’s accommodation, of allowing Complainant to work while seated, was intended as a temporary accommodation for three months, as supported by his medical document dated August 3, 2015. ROI at 257, 266. S2 stated that, due to staff turnover, Complainant was allowed free rein for years. When he learned that there was no supporting documentation, explained S2, he requested that Complainant provide updated medical documentation or work in accordance with his position description. ROI at 241. The Commission has found that an agency may request updated medical information when a complainant had not provided medical information for over one year. See Diaz v. U.S. Postal Serv., EEOC Appeal No. 0120112548 (Jun. 7, 2012). Here, we find that the Agency was not required to allow Complainant to work while seated because it removed essential functions, such as conducting foot patrols, and that S2 properly engaged in the interactive process when he requested updated medical information. In addition, while Complainant renewed his request to be accommodated with a chair and the ability to perform his duties while seated, an agency is not required to transform its temporary light duty jobs into permanent jobs to accommodate an employee’s disability. See Aguillard v. Dep’t of Justice, EEOC Appeal No. 0720040056 (Nov. 21, 2006); Marso v. Dep’t of Justice, EEOC Appeal No. 07A10094 (May 15, 2003), request for recon. den., EEOC Request No. 05A30864 (June 16, 2004). Complainant argues on appeal that his managers did not want to reassign him to a vacant position as a reasonable accommodation. However, we find that Complainant did not establish that he was entitled to an accommodation because he did not provide S2 with the requested medical documentation in support of his request for a reasonable accommodation. Complainant confirmed that, although S2 requested medical documentation on May 10, 2018, he did not provide the documents until his separation hearing on July 11, 2018. ROI at 90. The untimeliness of his submission is supported by the fact that the documents eventually supplied by Complainant included a document dated May 23, 2018. ROI at 155-6. Complainant did not offer any explanation for why he did not provide this updated medical document to S2 in May or June 2018, but instead waited until July 2018, in response to his proposed removal. 2020003594 6 We find that Complainant’s failure to timely provide medical documentation that was in his possession led to a breakdown in the interactive process. See Chanelle B. v. Dep’t of the Army, EEOC Appeal No. 0120182515 (Nov. 5, 2019) (complainant’s failure to provide medical documentation caused a breakdown in the interactive process because the agency was unable to determine the duration and severity of the complainant’s symptoms or determine the effectiveness of the proposed accommodation); Bergren v. Dep’t of Commerce, EEOC Appeal No. 0120090265 (July 17, 2012) (complainant’s failure to comply with a reasonable request from the agency for documentation indicates that he was responsible for the breakdown in the interactive process). As such, we find that the Agency did not violate the Rehabilitation Act when it did not grant Complainant’s requested reasonable accommodations. Disparate Treatment As an initial matter, we note that Complainant’s removal claim makes this a mixed-case complaint, which is a complaint of employment discrimination filed with a federal agency, related to, or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB). 29 C.F.R. § 1614.302(a)(1). However, the Agency did not inform Complainant that his case was a mixed-case complaint, and it provided him with appeal rights to the Commission, and not the MSPB. Complainant did not indicate that he also filed an appeal with the MSPB. Nevertheless, the Commission properly may assume initial jurisdiction of a mixed case issue (i.e., an adverse action which is properly within the jurisdiction of the MSPB) when, for example, the allegation is so firmly enmeshed in the EEO process that it would unduly delay justice and create unnecessary procedural complications to remand it to the MSPB. See Richardson v. Dep’t of Veterans Affairs, EEOC Appeal Nos. 01982915 01984977 (Nov. 5, 2001). Here, we find that this claim is so firmly enmeshed in the EEO forum that it would better serve the interests of administrative economy to address it in the instant appeal. Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, 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). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). 2020003594 7 Assuming, arguendo, that Complainant established a prima facie case of disability discrimination, we find that the Agency proffered legitimate, nondiscriminatory reasons for its action. As noted above, according to S2, Complainant’s employment was being terminated because he did not provide the requested medical documentation and refused to work according to his position description. ROI at 229. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argues that he did not refuse to perform his duties but stated that he “physically cannot.” However, as noted above, it is undisputed that Complainant failed to provide his medical documentation prior to the initiation of his removal and that he was not fully performing his position duties at the time of his proposed removal. Complainant made bare assertions that management officials discriminated against him, which are insufficient to prove pretext or show that their actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on disability when it terminated his employment. 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 decision finding that Complainant did not establish that the Agency discriminated against him based on disability when it denied his request for a reasonable accommodation and terminated his employment. 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. 2020003594 8 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. 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. 2020003594 9 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 November 8, 2021 Date