[Redacted], McKinley P., 1 Complainant,v.Lonnie G. Bunch III, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2020001019 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 McKinley P.,1 Complainant, v. Lonnie G. Bunch III, Secretary, Smithsonian Institution, Agency. Request No. 2021002089 Appeal No. 2020001019 Hearing No. 570-2017-00790X Agency No. 16-13-070516 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020001019 (January 22, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). Request to Reconsider Dismissal of EEOC Appeal No. 2020001019 During the relevant period, Complainant worked as a Museum Patrol Officer (MPO), GS-0085- 05, in the Agency’s National Museum of American History, Office of Protection Services, in Washington, District of Columbia. 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. 2021002089 2 On June 30, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and/or a hostile work environment based on his disability and/or in reprisal for prior EEO activity. After an investigation of the formal complaint by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 10, 2019, the AJ assigned to the case granted the Agency’s motion for summary judgement and concluded Complainant failed to prove he had been subjected to discrimination, harassment, or reprisal as alleged. On October 1, 2019, the Agency issued its Notice of Final Agency Action, adopting and fully implementing the AJ’s decision. On November 19, 2019, Complainant filed an appeal, which was docketed as EEOC Appeal No. 2020001019. The Commission dismissed Complainant’s appeal as untimely filed, noting that a copy of the Agency’s final order that the document was served on Complainant and his representative via email on October 1, 2019, and properly advised Complainant that he had 30 calendar days after receipt to file his appeal with the Commission. Complainant’s appeal, filed on November 19, 2019 was, therefore, untimely. Additionally, the Commission found Complainant had not offered adequate justification for an extension of the applicable time for filing his appeal. Therefore, the Commission dismissed the appeal pursuant to EEOC Regulation 29 C.F.R. § 1614.403(c). In requesting reconsideration, Complainant asserts that the Commission’s decision included a factual error, specifically that the Agency advised him of its final order via email on October 1, 2019. Complainant asserts that he was never properly notified by the Agency, noting that the Agency sent its order to an email address that was incorrect. We note that the record shows that the Agency’s final order was sent to an email address that is not Complainant’s address of record. Complainant asserts that, because he did not receive the email, he submitted an appeal of the AJ’s decision within 40 days of that decision. The Commission has previously held that where the record shows there has been confusion as to whether the Agency would issue a final order, the time limit for filing an appeal to the Commission may be tolled. See e.g., Complainant v. Dep’t of the Air Force, EEOC Appeal No. 0120120419 (April 16, 2014). Under the circumstances presented in this case, we are convinced by Complainant’s argument that he filed an appeal of the AJ’s decision after he did not receive notice of the Agency’s final order. Therefore, we exercise our discretion to extend Complainant’s time to appeal. See 29 C.F.R. § 1614.604(c) (time limitations are subject to waiver, estoppel, or equitable tolling). As such, we vacate our prior decision dismissing Complainant’s appeal as untimely filed and will now address, for the first time, the merits of his complaint. 2021002089 3 Merits of Discrimination and Retaliation Claims Background On June 30, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination based on his disability and/or in reprisal for prior EEO activity when, from August 5, 2015 and continuing, he was denied a reasonable accommodation, eventually causing him to be injured on the job. The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. Regarding his alleged basis of reprisal, Complainant indicated that he alleged the Agency acted in reprisal “for other work-related complaints and injustices that [Complainant] [had] spoken out about.” Regarding his alleged basis of disability, Complainant indicated that, in 2012, he suffered a right shoulder injury. He indicated that he was under physician’s orders to avoid repetitive activities and had restrictions on weightlifting, pulling, and pushing, as well as being restricted from carrying a service weapon. He further indicated that, in June 2015, he broke his left foot while at home. He indicated that he returned to work on August 5, 2015 with additional limitations of no standing or walking for periods of time and he was wearing a walker boot. He indicated that he was given light duties, such as monitoring the elevators and activities leading into the facility’s lower level. Complainant indicated that, on August 11, 2015, he received correspondence from the Agency’s Labor and Employee Relations department informing him that management was searching for a vacancy, a reassignment, as a reasonable accommodation for him and requested an updated resume or application. Complainant indicated that he submitted his resume to the Office of Minority Affairs. Complainant indicated that, on August 15, 2015, he received a memo informing him that the Office of Human Resources (OHR) would be contacting him for information regarding his medical restrictions. He also indicated that the letter provided that his work restrictions prevented him from performing the full range of essential duties of his position, no reasonable accommodation had been found to allow him to continue permanently in his current position, and management was considering reassignment as a final step to accommodate him. Complainant indicated that, in September, October, and November 2015, he continued to communicate with management and OHR regarding his medical condition and possible reassignment. He indicated that, on December 4, 2015, he was given a memo indicating that his temporary limited duty assignment would expire on February 28, 2016 and as per Agency policy, if he was unable to return to his regular post, he would be required to take leave or go on LWOP until he could be returned to full duty. 2021002089 4 Complainant indicated that, on January 4, 2016, he was informed that the Agency had not identified any positions at or below his grade level that met his qualifications and medical restrictions. Complainant argued that management’s response that if he could not return to full duty by February 28, 2016, then he would have to go on leave or be placed on LWOP was a denial of his request for a reasonable accommodation. He further argued that management’s decision to discontinue his light duty, failure to assist him in reassignment, and failure to provide him a reassignment “could have been reprisal actions based on [Complainant’s] ‘whistle blowing’ outspokenness over the years.” Complainant further indicated that, on January 22, 2016, the day of a snowstorm, he was still on light duty when he was asked to stay on duty past noon, the time the Federal government and museums closed. He indicated that he left shortly after 5 pm and slipped and fell on the icy parking lot, suffering a mild concussion, sprains to his back, groin, and side, and further exacerbated the injury to his broken foot. He alleged that his being told to remain behind until 5 pm was “another possible indication of reprisal action.” He indicated that, following this incident, he was placed on leave for this work-related injury. Complainant’s co-worker (CW1) attested that, on January 22, 2016, OPM stated that Federal agencies in the Washington, DC area were open and employees had the option for unscheduled leave or unscheduled telework; employees who reported to their worksite should depart 4 hours earlier than their normal departure time, but no later than 12 pm, at which time Federal offices in the Washington, DDC area were closed. He attested that Complainant was asked to stay overtime and, when Complainant indicated that he did not want to, management told him that it was an order. Another co-worker (CW2) attested that he was aware that Complainant was injured on January 22, 2016 when he slipped in the parking lot during the snowstorm. Two co-workers (CW3 and CW4) attested that they were assigned to work after noon on January 22, 2016 but were directed to leave at noon because they would have been on overtime. CW3 attested that Complainant was ordered to stay because he was on regular duty hours and would not have to be paid overtime. A Request for Accommodation form from Complainant indicates that, on August 5, 2015, he requested an accommodation from his supervisor and the requested accommodation was a transfer. It indicates that the reason for the request was that Complainant was no longer able to fulfill the duties of his position due to injuries. An August 11, 2015 memo from OHR indicates that the Agency was conducting a search for vacant, funded positions at Complainant’s grade level or below, in an effort to provide him a reasonable accommodation. It indicates that the vacancy search period was 30 days from the date of the letter and requests an updated resume or job application. It advises that, if they do not receive a current application by August 18, 2015, they will use the resume or application in Complainant’s Official Personnel Folder. 2021002089 5 An August 15, 2015 letter from the Office of Protection Services indicates that a Specialist from OHR will be contacting Complainant to provide him with information regarding the reassignment process and to obtain an updated resume. It provides that Complainant had the following restrictions put in place in August 2012: no repetitive right shoulder movement, no lifting more than 2 lbs. with the right arm, and no pulling or pushing more than 4 lbs with the right arm. It provides that Complainant’s position of Security Guard requires physical exertion, such as reaching and lifting and carrying heavy objects of 50 lbs or less, and Complainant’s work restrictions indicate that he was unable to perform the full range of essential duties in his position. It also indicates that no reasonable accommodation had been found to allow Complainant to continue permanently in his current position and OHR would contact him with further information regarding the reassignment process. It advises Complainant that he may submit medical documentation regarding his restrictions at any time. The record includes copies of documents faxed in September and October 2015 from Complainant to the Agency, including his Request for Accommodation Form, resume, and therapy and medical equipment orders. A December 4, 2015 memo from a Security Manager (Manager1) indicates that Complainant’s temporary limited duty assignment that began on August 28, 2015 was to expire on February 26, 2016 and, according to Agency policy, if an employee is unable to return to a regular post after the temporary assignment, he would be required to take leave or go on LWOP until they are able to return to full duty. It also informs Complainant of his rights under the Family and Medical Leave Act (FMLA). A January 4, 2016 email from an employee of the Labor and Employee Relations department (LER) indicates the Recruiting Branch had not identified any positions at or below Complainant’s grade level for which he qualified, and which met his medical restrictions. It also indicates that they were continuing to search for positions and, if one was identified, LER would set up a meeting at that time. It also advises that, if Complainant identified a particular position for which he believed he might qualify, he should let her know and submit an updated resume that includes any additional skills or experience. A Security Manager (Manager2) attested that Complainant’s position required a significant amount of standing, carrying a weapon, and responding to emergencies throughout the day and he was, therefore, not qualified to perform the functions of his position with or without an accommodation because of his disabilities. She attested that she was involved with Complainant’s accommodation when he was assigned to a non-public area where he would be in contact with visitors on a limited basis, noting he was assigned to the elevator where he was able to sit. She attested that this accommodation was accepted, and he was on this limited duty until her departure. 2021002089 6 Manager2 attested that all essential personnel are required to work when the government shuts down, on holidays, and during bad weather. She attested that limited duty officers are required to leave or not come to work during federal holidays, government shutdowns, or when personnel leave early. The Lieutenant attested that Complainant was on light duty at the time of his accident and had he not been on light duty, he would be assigned to work as a full-duty Museum Protection Officer, which requires standing, bending, walking, and to be able to lift 50 lbs. 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. While Complainant has, in a general sense, asserted that facts are in dispute, he 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. Reasonable Accommodation Claim Complainant asserts that the Agency improperly denied him a reassignment as a reasonable accommodation. The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See generally 29 C.F.R. Part 1630. 2021002089 7 In order to establish that Complainant 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 a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). Under the Commission's regulations, 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) and (p). The Agency does not dispute that Complainant is an individual with a disability. Therefore, the next inquiry is whether Complainant is a “qualified individual with a disability.” 29 C.F.R. §1630.2(m). A “qualified individual with a disability” is one who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who, with or without reasonable accommodation, can perform the essential functions of such position. Id. Neither party disputes the fact that Complainant did not meet the physical qualifications required to perform his position. However, the discussion of “qualified” does not end at Complainant's position of record. The term “qualified individual with a disability,” with respect to employment is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term “position” is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002). Therefore, in determining whether an employee is a qualified individual with a disability, an agency must look beyond the position which the employee presently encumbers. Id.; EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation) No. 915.002 (rev. Oct. 17, 2002) “Reassignment” Question 28; footnote 87; see also Interpretive Guidance on Title I of the Americans with Disabilities Act, Appendix, to 29 C.F.R. Part 1630.2(o). Here, Complainant requested a reassignment as a reasonable accommodation. An employee seeking reassignment as a reasonable accommodation generally must make a facial showing that there existed a vacant, funded position whose essential functions the employee could perform. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002) (complainant can establish that vacant, funded positions existed by producing evidence of particular vacancies or by showing that s/he was qualified to perform a job or jobs that existed at the agency and there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period); compare id. with Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016) (during investigative stage of federal administrative process, agency has obligation to develop adequate investigative record and obtain information about availability of vacant, funded positions). 2021002089 8 The Agency agreed to the reassignment and searched for a vacant position within Complainant’s limitations for which he was qualified. The Agency was unable to identify such a position for Complainant’s reassignment. The Agency engaged Complainant in that search and, although he was asked to identify a vacant, funded position, for which he was qualified, and Complainant failed to do so. Complainant argues that the Agency was obligated to accommodate him by keeping him on light duty or a limited duty assignment, unless it was an undue hardship. However, an employer does not have to eliminate essential functions of a position to accommodate an individual with a disability because a person with a disability who is unable to perform the essential functions, with or without a reasonable accommodation, is not a “qualified” individual with a disability. See Enforcement Guidance on Reasonable Accommodation at “General Principles”. Therefore, we find the Agency met its obligations under the Rehabilitation Act. Disparate Treatment Claim Complainant’s allegations that he was ordered to remain at work during the snowstorm give rise to a claim of disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). For a claim of reprisal, a complainant must show that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Assuming arguendo that Complainant established a prima facie case of discrimination and/or reprisal, we find his claim still fails. Agency employees attested that officers who would go into overtime by staying past noon were sent home to save overtime and Complainant, who was not going into overtime, was asked to stay to save that overtime. Even though Complainant has alleged discrimination and/or reprisal, we find the record does not establish that the Agency acted because of his disability or prior EEO activity. Therefore, we find he has not established a claim of disparate treatment. 2021002089 9 Harassment Claim Arguably, Complainant’s allegations give rise to an allegation of harassment. To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 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 disability and/or prior EEO activity. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Complainant's harassment allegations can generally be described as disagreements with managerial decisions and/or policy. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See e.g., Azucena A. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120181293 (July 9, 2019) (finding that a complainant's allegations relating to disagreements about managerial decisions, without evidence of an unlawful animus, did not amount to unlawful harassment); see also Morton P. v. Dep't of Agriculture, EEOC Appeal No. 2019002486 (December 26, 2019). CONCLUSION Therefore, 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. 2021002089 10 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. 2021002089 11 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 September 27, 2021 Date