[Redacted], Mac O., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 2021000577 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mac O.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2021000577 Hearing No. 410-2018-00256X Agency No. 9R1M117047 DECISION On August 17, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the decision of an EEOC Administrative Judge (AJ) after the Agency did not issue a final order concerning his equal employment opportunity (EEO) complaint. He alleged employment discrimination in violation of 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. BACKGROUND During the period at issue, Complainant worked as an Equipment Specialist at the Agency’s 78th Air Base Wing, Civil Engineering Group in Robins Air Force Base, Georgia. On June 29, 2017, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on disability and age (over 40) 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. 2021000577 2 a. on March 6, 2017, he became aware his reserved special disability parking space had been removed and replaced as a designated parking space for a member of leadership and all designated disability parking spaces had been moved to the far-left side of the parking lot; and b. on July 17, 2017, he received a reserved specialized disability parking space located at building 300 East, Day, Door 6A, which is insufficient due to the parking space location being too far from his work center. After an 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 AJ. Complainant timely requested a hearing. Thereafter, the AJ held a hearing on November 21, 2019. Following the hearing at which four witnesses testified, the AJ issued a decision finding no discrimination was proven. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, became the Agency’s final order pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact-finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination - that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2021000577 3 Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the Agency has articulated a legitimate, nondiscriminatory 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In his decision, the AJ determined that the following relevant evidence was presented during the investigation into the formal complaint and at the hearing, which established that responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. The AJ noted that Complainant had his requested accommodation, a reserved special disability parking space, in place for approximately eight years - from 2009 to March 2017, pursuant to the medical documentation that he provided to Agency management in 2009. The medical documentation indicated that Complainant needed a parking space within 50 to 100 feet of the entrance of the building. In 2017, the Agency revised its parking organization plan and issued Complainant a new parking space. The Agency offered Complainant a new reserved disability parking space that was within 50 to 100 feet of the building as required by his medical documentation. The AJ stated, however, Complainant asserted that his actual medical need was to park his vehicle within 50 to 100 feet of his work center. Complainant further argued although the new parking space was closer to the entrance, his prior space was closer to his work center. As a result, the Agency requested Complainant to provide additional documentation to support his asserted actual medical need but he did not do so. The AJ noted that through its base parking reorganization plan, the Agency asserted that it wanted to reduce the number of management reserve parking spaces and pull in all the disability parking spaces as close it could to its buildings. The fact that the Agency ended up putting in about eight times the number of disability parking spaces required under the Americans with Disabilities Act (ADA) lends support to its assertion. The Agency had notified all employees of the pending changes in its base parking plan and provided them with instructions to request assignment of reserved handicap parking space. All individuals with an assigned disability parking space were asked to revalidate their assigned parking spaces. 2021000577 4 Thereafter, Complainant submitted his request for a revised disability parking space. While his request was being reviewed, Complainant had available to him open disability parking spaces that met his documented medical needs. The Agency approved Complainant’s request and assigned him a space that fell within his physician’s recommendations but he rejected his new parking space claiming that he would have to walk more than 200 feet down the hall from his work center to get to the door of the building and to the door of his vehicle in the newly designated parking space. With respect to Complainant’s allegation that his former disability parking space was part of an EEO settlement with the Agency in 2010, the AJ determined that “nowhere in the Settlement Agreement executed by the Complainant and [Agency official] on October 6 and September 30, 2010, respectively, is there any reference to the reserved special [disability] parking space. Furthermore, even if the Complainant’s former reserved parking space was part of the EEO settlement, that does not mean the benefit will last forever.” The AJ noted that Complainant’s Occupational Medical Services (OMS) Medical Evaluation of Work Status does not provide support for his assertion that walking from his work center to the newly parking space within 50 to 100 feet of the “building.” His new parking space was within approximately 20 feet of the building and is the closest disability parking space to the building. Moreover, the AJ noted that the Agency attempted to identify and engage in the interactive process to implement reasonable accommodations for Complainant. However, Complainant, despite the Agency’s repeated requests, failed to submit additional documentation as part of the reasonable accommodation process. Specifically, the Agency requested for information from Complainant’s physician concerning how many feet Complainant could walk. The AJ noted that Complainant seemed to argue that he did not provide the requested documentation because he is not obligated to submit all his medical records under the Agency’s regulation. The Flight Chief (over 40) with the 410 Squadron, Complainant’s second-level supervisor, testified that the Occupation Nurse Case Manager (Case Manager) contacted her concerning Complainant’s packet regarding the parking space. The Case Manager informed the Flight Chief that Complainant’s packet was not completed and they needed specific information from his physician. The Flight Chief acknowledged that they never received all the required documentation from Complainant. She further testified, “I believe it was in June we found out that CE had approved for [Complainant] to get a parking space without the completed package.” The Flight Chief noted that she and Complainant walked to his new parking space and, “I said, well, this is your parking space and he said ‘nope.’ I said. What do you mean ‘nope?’ He said, ‘this is unacceptable.’ I said, ‘well, why?’ He said, ‘because it was too far.” Moreover, the Flight Chief noted that Complainant’s new parking space was “a little further than his old parking space, but like I said, it did have the ramp. And it was the first parking space closest to the door.” She also noted that it was approximately 25 or 30 feet additional distance that Complainant would have to walk to the door. 2021000577 5 During her testimony, the Occupational Nurse Case Manager (Case Manager) (unknown age) asserted that Complainant was given a package regarding the parking space. She stated, however, that she never received any documentation to indicate that Complainant had an impairment which would be considered a reasonable accommodation. Specifically, the Case Manager stated that she sent an email to the Flight Chief letting her know that they had received an incomplete packet and “the information that we received was other information other than what we would request. So, that’s why I was saying we needed a complete package.” She further explained she requested the following documents as follows: “a completed EEOC Form 557 that is signed by the supervisor and employee; the medical inquiry from that a physicians name written or stamped on it; progress notes from the last visit with the treating physician; and D Form 2870 Authorization for Disclosure or Medical or Dental Information and Job Description or HPR.” The Case Manager stated that that she tried to explain to Complainant “saying we don’t need all of your progress notes. We don’t need all of your entire history. We just need the notes from the last visit, your most recent visit, you know, that correlates to this accommodation request.” She stated that OMS was trying to determine the distance that Complainant “could walk…we just need to know the specific distance. You know, like whether its 50 feet or 60 feet, 75 feet. We didn’t have that information.” In his decision, the AJ noted that the Agency provided Complainant with his former disability parking space for approximately eight years until the Agency made the change in the parking plan and “I find the Agency’s reason for the change in the parking plan to be a reasonable one, and I find no indication of bad faith on the part of the Agency.” Based on this evidence, the AJ concluded that Complainant failed to prove, by a preponderance of the evidence, that management’s articulated reasons for its actions were pretext. Complainant has offered no persuasive arguments on appeal regarding the AJ’s findings on the merits. The AJ’s decision, following a hearing where witness credibility could be assessed, is well-reasoned, and the conclusion that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not proven to be pretextual, is abundantly supported by substantial evidence in the record, as referenced above. Beyond his bare assertions, Complainant did not point to evidence of record sufficient to prove that the reasons proffered were a pretext designed to mask the true discriminatory motivation. CONCLUSION We AFFIRM the Agency’s final order because the Administrative Judge’s ultimate finding, that unlawful disability and age were not proven by a preponderance of the evidence, is supported by substantial evidence of record. 2021000577 6 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). 2021000577 7 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 March 2, 2021 Date