[Redacted], Lynwood R., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Nov 10, 2021

Appeal No. 2020003950 (E.E.O.C. Nov. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lynwood R.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020003950 Hearing No. 550-2018-00517X Agency No. FS-2018-00185 DECISION On June 2, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an April 16, 2020 decision by an Equal Employment Opportunity Commission Administrative Judge (AJ) 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Residential Supervisor, GS-01702-09, at the Agency’s Forest Service Columbia Basin Job Corps facility in Moses Lake, Washington. On January 26, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), disability (Post Traumatic Stress Disorder), and reprisal for prior protected EEO activity when: 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. 2020003950 2 1. On November 27, 2017, Complainant learned management issued him a seven- day suspension for misconduct, effective December 17, 2017, and denied his request to appeal the seven-day suspension. 2. On February 1, 2018, Complainant received a Notice of Proposed Removal from Federal Service from his position as a Supervisory Social Services Assistant GS- 0186-09. 3. Management denied Complainant’s reasonable accommodation request(s). 4. From April 2017 and ongoing, Complainant was subjected to harassment. At the conclusion of the investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s November 22, 2019 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on April 16, 2020. Specifically, the AJ found that the Agency articulated legitimate nondiscriminatory reasons for its actions and that Complainant failed to show that such reasons were pretextual. With regard to denial of reasonable accommodation, the AJ found that such claims were untimely-raised and that the requests could not be considered as an ongoing violation. When the Agency failed to timely issue a final order, Complainant appealed the AJ’s decision. The Agency subsequently issued an undated final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS 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. 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. 2020003950 3 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. Disparate Treatment Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination. With regard to the seven-day suspension, the November 27, 2017 Letter of Decision to Effect Seven Day Suspension (Letter I) noted that Complainant’s supervisor (“S1”) (race not identified in record) had given Complainant an airsoft rifle that S1 had confiscated from a student: [W]ith instructions to keep the item under lock and key until [the following day], when [the student] left for leave. You gave the airsoft rifle back to [the student] . . . the day before he was to go on leave. [The student] and his roommate . . . then played with the airsoft rifle in their dorm, took selfies, and posted them to a social media site. A fellow student saw the picture and reported it to the Recreation staff, which caused alarm as the airsoft rifle was a replica in appearance to an AR-15 assault weapon. 2020003950 4 Additionally, Letter I noted that: On May 5, 2017, during an investigation by Law Enforcement and the Office of Inspector General (OIG), several boxes of documents were discovered at your former residence. The OIG was concerned about this paperwork being left unsecured and asked Center management to secure the documents involved. When the three boxes were inventoried, it was revealed that they contained multiple documents from the Job Corps Center, many of which contained employee PII [Personal Identifiable Information], including leave requests, Letters of Counseling, employee complaints, and documentation regarding medical information. Letter I further noted that the previous year Complainant had been notified of a decision to suspend him for fourteen days based on a charge of driving a government vehicle without a valid driver’s license and that Complainant had entered into an agreement (Agreement) with the Agency to hold seven of the fourteen days in abeyance if he agreed to not engage in further misconduct for a year. Additionally, Letter I noted that under the terms of the Agreement, if Complainant failed to comply with its terms, the remaining seven days of the initial fourteen-day suspension would be immediately implemented and further, that in accepting the Agreement, Complainant had waived all rights to appeal, grieve, complain, litigate or otherwise contest “any action taken against you for failure to satisfy the terms of the Agreement.” With regard to the Letter of Removal (Letter II), the charges supporting the removal were the same as referenced in Letter I. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard to the incident concerning the airsoft rifle, Complainant averred that at no time was he aware that the item was a rifle since when S1 handed it to him it was wrapped up “in such a way that it could have been anything.” Complainant further averred that, “I was instructed to make sure that the student was able to go home with the weapon the next day,” and that since Complainant was not going to be available the following morning when the student’s mother was due to arrive to pick up the student, he gave the item to the student and instructed him to put it in his locker, which the student failed to do. Complainant’s work colleague (“CW”) (African American) averred however that: Even after learning the item was unauthorized, the procedure was not followed. Even by state law, aerosol [sic] (Air) rifles are not allowed on school facilities, nothing happened. The rifle should have been secured, the Sheriff should have been called, and the weapon should have been removed from center by the proper authorities. 2020003950 5 While Complainant may feel that his treatment was unfair with regard to this incident, he has not shown that he was treated differently based on his protected bases. We note in this regard that both he and S1 were due to receive discipline for their involvement in the incident, and both chose to retire in lieu of receiving disciplinary action, so Complainant cannot show that he was treated differently based on his protected bases. With regard to the incident regarding PII kept at Complainant’s former residence, Complainant maintains that Agency officials had no authority to enter the residence and they did not have a warrant. The record shows, however, that the officials were provided entrance by Complainant’s estranged spouse who lived at the residence and who had falsely told Agency officials that Complainant was storing child pornography. Even assuming arguendo that Agency officials had no authority to enter the residence, that does not negate the fact that Complainant was in possession of employee PII, a fact that Complainant has not denied. We note that Complainant has not shown that other similarly situated employees who also stored employee PII in locations away from the workplace were treated differently. We therefore find that, with regard to both Letter I and Letter II, Complainant has not shown that the Agency’s actions were motivated by discriminatory animus or retaliatory motive. Denial of Reasonable Accommodation Under the Rehabilitation Act and the Commission's regulations, an agency is required to make reasonable accommodation of 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. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (Oct. 17, 2002). When an individual's disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his or her disability and functional limitations. Id. at Question 6. The employer is entitled to know that the individual has a covered disability for which he needs a reasonable accommodation Id. Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has a disability within the meaning of the Rehabilitation Act and that the disability necessitates a reasonable accommodation. Id. If an individual's disability or need for accommodation is not obvious, and he refuses to provide the reasonable documentation requested by the employer, then he is not entitled to reasonable accommodation. Id. 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 EEOC Enforcement Guidance No. 915.002, 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. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). 2020003950 6 Improper termination of the interactive process constitutes an improper denial of a reasonable accommodation. See Harvey G. v. Dep't of the Interior, EEOC Appeal Nos. 0120132052 & 0120150844 (Feb. 4, 2016). Complainant maintains that he is a combat veteran with Post Traumatic Stress Disorder (PTSD) and that: [W]hen I go to work I have to talk myself into not being paranoid. I have to talk myself out of depression and anxiety attacks. I do not go out and socialize because I must concentrate all of my ability into making sure I do not make mistakes at work. I sometimes have to suck it up when what I really need is a reasonable amount of time to regroup. Complainant further averred that, “I did have that conversation (about his condition) on separate occasions with [the Center Director (“CD”) (Caucasian)]. Also, on at least one occasion during a PTSD-related flare-up [CW] counseled me.” We note, however, that CD denies that Complainant ever requested an accommodation and Complainant has not specified on what date(s) he made such a request, or what form of accommodation he sought. Instead Complainant averred that, “I did request an official reasonable accommodation; however, it was not under this particular management team. We originally fell under the bureau of reclamation and then we switched over to USDA Forest Service. . . . from what I understand, no one in the new management team has knowledge of my previous request.” Even assuming management was aware of his disability, that is not the same thing as being aware that Complainant needed an accommodation or what form that accommodation should take. Complainant averred that the accommodation he sought was such that: [I]f I am found to have committed an infraction or whatever, I expected to be held accountable. But that I also expect that if I need a reasonable amount of time to digest the information as it is given to me that I am allowed the same amount of time as a reasonable person would receive. Complainant has not shown how this request, assuming it was communicated to management, was denied. With regard to the infractions referenced in Letters I and II, Complainant has not indicated that he was provided insufficient time to process the information. We therefore find that Complainant has not shown that he was denied a reasonable accommodation. 2020003950 7 Hostile Work Environment We note initially that, to the extent that Complainant is alleging that he was subjected to a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes the seven-day suspension and the Notice of Proposed Removal must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that complainant failed to establish that any of the actions taken by the agency with regard to those claims were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment occurred: on unspecified dates he received harassing emails and telephone calls from unspecified individuals; management allowed Complainant’s subordinates to “be involved in my marital affairs and my personal life”; on an unspecified date he was shown a picture of male genitals and was accused of taking the picture of his own genitals himself; he was disciplined for physically retaliating after a resident touched him inappropriately; and on an unspecified occasion he was subjected to a management inquiry, causing him to sweat, cough profusely and rush to the restroom where he vomited violently. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race, disability or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 2020003950 8 Following a review of the record we find that Complainant has not shown that any of the actions complained of either involved or were based on his protected bases. Nor are the actions sufficiently severe or pervasive to alter the conditions of Complainant’s employment. Complainant’s claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we Affirm the 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). 2020003950 9 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. 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 10, 2021 Date