[Redacted], Leon B., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Nov 8, 2021

Appeal No. 2020003852 (E.E.O.C. Nov. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leon B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Appeal No. 2020003852 Hearing No. 570-2018-00539X Agency No. 2017-PFPA-047 DECISION On June 22, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 3, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant worked as a Police Officer in the Law Enforcement Directorate at the Agency’s Pentagon Force Protection Agency (“PFPA”) in Washington, D.C. On April 26, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him based on disability (hearing loss and tinnitus) when, on May 18, 2017, the Deputy Director, Recruiting, Medical, and Fitness Division, placed Complainant in a “Medically Not Cleared” status. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). 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. 2020003852 2 Complainant timely requested a hearing. On September 12, 2018, the AJ issued a Notice of Proposed Summary Judgment. The AJ subsequently issued a decision by summary judgment finding no discrimination. The Agency issued its final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. (as revised, August 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). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is an individual with a disability. The record shows the Agency has written medical qualification standards that includes an Audiometric Standard that states, “[a] PFPA police officer requires full hearing capabilities for the successful performance of essential functions. It is critical that the individual be able to recognize and respond appropriately to nonverbal auditory stimuli, such as the sound of shotgun racking, retreating or approaching footsteps, or the sound of 5 breathing, as well as be able to adequately receive, perceive, and react appropriately to speech communication in a variety of situations.” 2020003852 3 Pursuant to PFPA’s Occupational Medical and Physical Fitness Program, Complainant underwent an annual occupational medical examination in June 2016. As part of the June 2016 examination, Complainant’s hearing was tested via an audiogram. The June 2016 audiogram results revealed that Complainant might not meet the Agency’s audiometric standards. According to standard practice, he was brought back for a follow-up audiogram in July 2016. The July 2016 audiogram results confirmed the prior testing which suggested Complainant might not meet the Agency’s audiometric standards. To resolve the issue, Complainant was referred for an Independent Medical Examination (IME) at Walter Reed National Military Medical Center Bethesda (“Walter Reed”) to test his functional hearing capacity. The IME was to be conducted at the Agency’s expense. Complainant refused to participate in the IME. As a result of his ongoing refusal to attend an IME at Walter Reed, Complainant was placed in a “Medical Hold” status in December 2016.2 On April 11, 2017, the Agency attempted to obtain Complainant’s compliance once again by issuing him memorandum requesting “Voluntary Submission of Supplemental Medical Information”. The memorandum stated that Agency exams indicated that Complainant might not meet the 2017 PFPA audiometric medical standards. It requested that Complainant schedule an evaluation with an audiologist at Walter Reed. The memorandum also informed Complainant, “[i]f you decide not to submit the supplemental medical information requested, or if you fail to submit the requested information on or before the due date, you will be placed in a “Medically Not Cleared” status and your case will be forwarded to the Medical Review Board for deliberation. When making its decision, the MRB will review and fully consider any information it has as of the date your case is presented to it. Please be advised that covered employees in “Medically Not Cleared” status are ineligible for full duty.” On April 12, 2017, Complainant responded to the memorandum via email indicating his refusal to “voluntarily” participate in the IME at Walter Reed. On April 20, 2017, Complainant was notified that the Agency’s Medical Advisor, upon learning that Complainant had chosen not to comply with the memorandum’s request for an evaluation by an audiologist, placed him in a “Medically Not Cleared” status. However, in May 2017, the Director of the Recruiting, Medical, and Fitness Division (“RMFD Director”) was in contact with Complainant and explained the standard occupational medical program practices and procedures and responded to some of his concerns. A few days later, on May 12, 2017, the RMFD Director advised Complainant that he had returned Complainant to a “Medical Hold” status based on Complainant’s representation that he would attend an IME at Walter Reed. While in a “Medical Hold” status, Complainant was permitted to work in a full- duty status. 2 The “Medical Hold” status allowed Complainant to keep working in his police officer position while the further medical testing occurred. 2020003852 4 However, on May 16, 2017, the Agency received workers’ compensation paperwork from Complainant’s physician that indicated that Complainant should be in a light duty status.3 Based on this documentation, Complainant was returned to “Medically Not Cleared” status because it was determined that he was unable to perform the full range of his essential job duties. While in the “Medically Not Cleared” status, he was not authorized to work. In July 2017, Complainant attended the IME at Walter Reed. Upon receipt of the IME results, the Agency promptly returned Complainant to a “Medically Cleared” status. Complainant explained that all the prior requests that he schedule the IME “were for voluntary information. I declined to volunteer as it is my right and I would not waive my rights. My response was if the agency made the appointment and ordered me to go, then I would go.” He stated that in July 2017, the Agency made the appointment and ordered him to go so he went. Here, the evidence of record supports the AJ’s determination that Complainant repeatedly refused to submit to the requested audiology exam to definitively determine whether or not he met the Agency’s medical qualification standards for hearing. The Agency was going to pay for the exam and engaged in repeated attempts to convince Complainant to schedule the exam, which he refused to do. Throughout this process, the Agency allowed Complainant to continue working, until he brought in new medical restrictions related to a worker’s compensation claim that indicated he was restricted from performing the essential functions of his position. At this time, he was placed in the medically disqualified status at issue until his medical condition permitted him to perform the essential functions of his police officer position. While Complainant asserts the Agency was trying to circumvent the workers’ compensation process,4 we find the Agency had the authority to request separate medical documentation as part of the process to determine whether Complainant was able to meet the PFPA’s medical standards. In sum, based on the undisputed evidence of record, the AJ correctly determined that Complainant did not establish that the Agency violated the Rehabilitation Act in this matter. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment finding no discrimination. 3 While not altogether clear from the record, it appears Complainant’s physician recommended hearing aids and noise protection. 4 The EEO complaint process is not the venue to resolve workers’ compensation claims. Concerns about the Agency’s actions in response to Complainant’s workers’ compensation claim should be resolved within that system and not through an EEO complaint. 2020003852 5 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. 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). 2020003852 6 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 November 8, 2021 Date