[Redacted], Lionel A., 1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 8, 2021

Appeal No. 2020000033 (E.E.O.C. Jan. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lionel A.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020000033 Agency No. ARCCAD16AUG03060 DECISION On August 9, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 10, 2019 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Aircraft Mechanic, WG-8852-10, in the UH60 AVIM Section, UH60 RECAP2 Assembly Branch, UH60 RECAP Division, Directorate of Aircraft Production, at Corpus Christi Army Depot, Texas. On October 28, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his race (African-American), color (black), and disability (osteoarthritis, a meniscal tear in the left knee, Post Traumatic Stress Disorder (PTSD) and anxiety) when, on May 23, 2016, management denied his request for reasonable accommodation not to be required to 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. 2 AVIM and RECAP do not appear to be defined in the record. 2020000033 2 rotate to the assembly line and instead he was told to sit in the breakroom and not perform any of his duties; he was then temporarily assigned to the Ergonomic Center/Safety Store. After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. FACTUAL BACKGROUND Complainant stated that he experiences complications from osteoarthritis and a meniscal tear in the left knee as well as several mental conditions including Post-Traumatic Stress Disorder (PTSD), anxiety, and depression. In April 2016, management informed Complainant that AVIM employees would have to rotate to the aircraft production line. Complainant reported to management that he had medical impairments that prevented him from rotating. Management subsequently referred him to the Occupational Health Clinic for an evaluation. Complainant was initially placed on temporary restrictions of no work above shoulder level, no bending, no kneeling or squatting, no working on knees, and no climbing on aircraft/ladders/stairs. After a few months of temporary restrictions, he was placed on permanent restrictions. Management determined that they could not retain Complainant in his current position without violating those permanent restrictions. Agency management further noted that the duties on the production line were essentially identical to Complainant’s AVIM duties, with the addition of climbing. As a result, management removed Complainant from his position and placed him in the break room, pending identification of a position into which he could be assigned that would not violate his medical restrictions. After approximately four weeks, he was assigned to the Ergonomic Center/Safety Store, which enabled him to perform duties that were within the limits of his medical restrictions. The record shows that Complainant requested reasonable accommodation, asking that he remain in his current position. However, management determined they could not leave him in that position without either removing essential functions or requiring him to violate his medical restrictions. Complainant’s supervisor (S1) explained that when an essential function analysis was done on the AVIM work, Complainant's limitations prevented him from being able to bend or squat to open box containers with parts, or to lift the parts from the box. Complainant also acknowledged that “there was minimal bending and squatting” involved in his AVIM position. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of 2020000033 3 record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Denial of Reasonable Accommodation Under the Commission's regulations, a federal agency may not discriminate against a qualified individual based on disability and is required to provide reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation.3 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 on Reasonable Accommodation). An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the 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). “Essential functions” are the fundamental job duties of the employment position that the individual holds or desires. Id. § 1630.2(n). The undisputed record indicates that essential functions of the Aircraft Mechanic position included “minimal bending and squatting” and Complainant was not able to perform any bending or squatting. Accordingly, we agree with the Agency in concluding that Complainant was not qualified to perform the duties of his AVIM position. While Complainant requested that he remain in his position, Agency management determined that Complainant could not remain in the position without violating his restrictions or requiring management to remove essential functions. The Commission notes that although individuals protected under the Rehabilitation Act are entitled to reasonable accommodation, they are not necessarily entitled to their accommodation of choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also Enforcement Guidance on Reasonable Accommodation at Question 9. Here, the record shows that the Agency moved Complainant to the break room until a light duty position was located.4 Complainant did not point to evidence in the record demonstrating that the position he was placed in at the Ergonomic Center/Safety Store was ineffective. Accordingly, the Commission finds that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. 3 The events in this case arose after January 1, 2009, the effective date of the American with Disability Act (ADA) Amendment Act of 2008, which made significant changes to the definition of disability under the ADA and the Rehabilitation Act. 4 We note that the record indicates that on June 25, 2020 a new essential functions analysis was performed on the Aircraft Mechanic position which determined that the essential functions of the position in 2020 were different from those in 2016. Based upon this new analysis of the position, it was determined that Complainant could perform the essential functions of the position, with an accommodation. Accordingly, Complainant was returned to his position. 2020000033 4 Disparate Treatment To the extent that Complainant alleges that he was subjected to disparate treatment (apart from accommodation), Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981) (applying this analytical framework to cases brought under the Rehabilitation Act). Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, the Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons for its actions as discussed above. Namely, Agency management explained that Complainant was temporarily removed from his position and reassigned to the Ergonomic Center/Safety Store to accommodate his conditions as he was unable to perform the essential duties of the position. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. We find the record devoid of evidence to support the assertion that any responsible management official held animus toward Complainant based on his protected classes. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. 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. 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. 2020000033 5 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). 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. 2020000033 6 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 January 8, 2021 Date