[Redacted], Morton P., 1 Petitioner,v.Frank Kendall III, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Feb 28, 2022

Petition No. 2022000384 (E.E.O.C. Feb. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Morton P.,1 Petitioner, v. Frank Kendall III, Secretary, Department of the Air Force, Agency. Petition No. 2022000384 MSPB No. DA-0752-21-0254-I-1 DECISION On October 22, 2021, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we CONCUR with the MSPB’s ultimate decision that Petitioner did not establish that the Agency discriminated against him. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Materials Expediter (Forklift/Motor Vehicle Operator), WG-6910-07, with the Agency’s 551st Commodities Maintenance Squadron at Tinker Air Force Base in Oklahoma City, Oklahoma. He has been diagnosed with generalized anxiety disorder and depression. See Initial Appeal File (IAF), Part 2, at 372, 376, and 407-8. Due to these disabilities, Petitioner has been substantially limited in his ability to sleep. See MSPB Administrative Judge (AJ)’s decision (Decision) at 23. The record shows that Petitioner was not originally assigned to the 551st. See Decision at 4. For many years, Petitioner worked as a Materials Expediter (Forklift/Motor Vehicle Operator) with the Agency’s 553rd Commodities Maintenance Squadron at Tinker Air Force Base. Id. While at the 553rd, Petitioner filed a reasonable accommodation request seeking modification of his 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2022000384 2 forklift and truck-driving duties. Id. at 14. In support of the request, Petitioner submitted a letter from his treating physician, who opined that Petitioner was medically unable to drive motor vehicles in “cramped and confined buildings” due to anxiety. Id. The Agency’s occupational health physician concurred with these restrictions and opined that Petitioner was partially restricted from operating a “crane truck, tractor, or motor vehicle” and could not drive “vehicles in large congested buildings” such as Building 3001. Id. However, the occupational health physician opined that Petitioner could drive in Building 9001. Id. The Agency ultimately determined that it could not accommodate Petitioner’s request because the essential functions of his position included these duties. On August 19, 2019, the Agency issued Petitioner a notice of removal, citing Petitioner’s inability to perform the essential functions of his position. See IAF, Part 1, at 11. Petitioner challenged the removal action by filing an appeal with the MSPB. During the adjudication of that appeal, the MSPB AJ assigned to the matter identified a due process violation and ordered the parties to address that issue at the scheduled hearing. See Decision at 3. In response to the MPSB AJ’s order, the Agency unilaterally rescinded the removal action and reinstated Petitioner. Id. Without objection from either party, the MSPB AJ dismissed the appeal without prejudice to filing. Id. That decision became final on December 18, 2019, when neither party appealed the MSPB AJ’s initial decision. Id. Following his reinstatement, the Agency reassigned Petitioner and three of his colleagues from the 553rd to the 551st. Decision at 4-5. Petitioner claimed that the purported realignment was a sham process designed for the express purpose of removing him from the Agency. Id. Though Petitioner’s position title did not change, Petitioner contended that the duties at the 551st differed substantially from his duties at the 553rd. Id. Specifically, Petitioner claimed that his duties at the 553rd involved shipping and receiving materials and inventory control, which were more in line with the duties of a Materials Expediter. Id. In contrast, Petitioner claimed that his duties at the 551st, which included driving and riding in vehicles, were more in line with duties of transportation personnel. Id. Petitioner repeatedly sought reassignment to the 553rd but was unsuccessful. Id. At the 551st, Petitioner was officially supervised by the squadron’s Unit Chief. However, he refused to acknowledge that the Unit Chief was his supervisor and claimed that “[a]ll documents written falsely claiming that the painter, [Unit Chief] was my supervisor are fiction.” See IAF, Part 2, at 15. When Petitioner arrived at the 551st, Human Resources informed the Unit Chief that he, as Petitioner’s supervisor of record, had to make a formal determination on Petitioner’s prior request for a reasonable accommodation because management at the 553rd had not made a formal determination prior to removing Petitioner. Decision at 23-24. The Unit Chief ultimately informed Petitioner that the Agency would grant Petitioner’s reasonable accommodation request to not drive in Building 3001. Id. Petitioner, however, became angry and refused to discuss the matter with the Unit Chief because he had not filed his reasonable accommodation request with the Unit Chief. Id. 2022000384 3 While at the 551st, the Unit Chief issued several directives to Petitioner, including the following: 1) report to Occupational Health to obtain medical clearance; 2) drive a small tug in Building 9001; 3) ride in a vehicle with other employees; and 4) assist in distributing materials. Decision at 16. Petitioner declined to comply with these directives because he did not believe that the Unit Chief had the authority to issue him directives. Id. Additionally, Petitioner claimed that he could not ride in a vehicle with other employees or drive a small tug because having to perform transportation duties caused him chest pain and was contrary to his medical restrictions. Id. Ultimately, Petitioner’s failure to carry out the Unit Chief’s directives resulted in the Unit Chief marking Petitioner as AWOL on March 2 and 4, 2020, when Petitioner failed to show up to his assigned duty stations. Id. Notably, Petitioner refused to provide any updated medical records to the Unit Chief to substantiate his claimed inability to ride in a vehicle, distribute materials, or drive a small tug, as he believed that the Unit Chief did not have the authority to make such a request. Id. The Unit Chief ultimately proposed to remove Petitioner from federal service for the second time “for failure to follow a directive, failure to report as scheduled, and unauthorized absence.” See IAF, Part 1, at 11. On April 7, 2021, the Deputy Director of the 551st upheld the proposal and effectuated Petitioner’s removal, effective that day. Id. In response to the Agency’s removal action, Petitioner filed a mixed-case appeal with the MSPB, challenging the Agency’s decision to remove him from federal service. As part of his affirmative defense, Petitioner alleged that the Agency subjected him to discrimination based on disability when it denied him reasonable accommodation and subjected him to disparate treatment when it transferred him to the 551st and removed him. Petitioner also alleged that the removal action was taken in reprisal for his prior EEO activity. The MSPB AJ assigned to the matter held a hearing on July 29, 2021. During the hearing, Petitioner repeatedly claimed that the Agency assigned him transportation duties, such as riding in a vehicle, transporting materials, and driving a small tug, which were outside the scope of his duties as Materials Expediter (Forklift/Motor Vehicle Operator). To hone this point, Petitioner emphasized that, unlike transportation personnel, he was never required to undergo a physical examination. Petitioner further emphasized that he never filed a reasonable accommodation request to not drive in Building 3001, and he noted that the occupational health physician was the one who imposed that restriction. Petitioner maintained that the Unit Chief should have referred him to the EEO Office or alternative dispute resolution to begin the interactive process but failed to do. Petitioner claimed that the Agency’s failures resulted in his removal. See Petitioner’s hearing testimony contained in audio file titled “MSPB2” at 42:40-01:39:00. The Unit Chief also testified during the hearing. He stated that Petitioner repeatedly failed to follow his directives. Furthermore, the Unit Chief testified that Human Resources contacted him to inform him that Petitioner had filed a reasonable accommodation request stating that he was unable to drive in Building 3001. The Unit Chief testified that he granted Petitioner’s request in full and became angry when informed of the Unit Chief’s decision because the Unit Chief “wasn’t in charge of this.” When Petitioner’s attorney asked the Unit Chief whether Petitioner’s 2022000384 4 reasonable accommodation request included other accommodations, such as a request not to ride in vehicles, the Unit Chief replied in the negative. Id. at 54:14-60:00:00. The Unit Chief further emphasized that Petitioner did not raise any alternative accommodations with him. The Unit Chief emphasized that his proposal to remove Petitioner was based solely on Petitioner’s conduct and not his disability. See Unit Chief’s hearing testimony contained in audio file titled “MSPB1” at 14:00-01:20:00. On August 18, 2021, the MSPB AJ issued an initial decision affirming the removal action. In affirming Petitioner’s removal, the MSPB AJ carefully considered Petitioner’s affirmative defenses; however, the MSPB AJ concluded that Petitioner failed to persuasively show that he had been subjected to discrimination based on disability and reprisal. With regard to Petitioner’s denial of reasonable accommodation affirmative defense, the MSPB AJ initially found that Petitioner was an individual with a disability because Petitioner’s generalized anxiety disorder adversely affected Petitioner’s ability to sleep. The MSPB AJ then found that the Unit Chief had accommodated Petitioner by granting Petitioner’s previous request for reasonable accommodation, which Petitioner had filed while assigned to the 553rd. Regarding Petitioner’s assertion that the Agency failed to engage in the interactive process, the MSPB AJ found that the Unit Chief credibly testified that Petitioner became angry when informed that his accommodation request had been granted and refused to discuss the matter with the Unit Chief, claiming that the Unit Chief “wasn’t in charge of this.” The MSPB AJ further found that Petitioner “conceded that he never discussed his disability with [the Unit Chief] and that [the Unit Chief] does not know the extent of his disability.” The MSPB AJ ultimately concluded that “the Agency’s grant of a reasonable accommodation request and calling of a meeting to provide that accommodation satisfied the Agency’s requirement to engage in the interactive process.” As for Petitioner’s claim of disparate treatment, the MSPB AJ determined that Petitioner failed to persuasively show that his disability was a motivating factor in the removal action, as Petitioner presented no direct evidence of discrimination nor provided evidence of similarly situated non-disabled employees who were treated more favorably. To the contrary, the MSPB AJ noted that three other employees were reassigned to the 551st along with Petitioner. While the MSPB AJ acknowledged that the record did not specify whether these individuals had disabilities, the MSPB AJ found that the available evidence persuasively demonstrated that the reassignment was not targeted at Petitioner. Additionally, the MSPB AJ determined that the Unit Chief credibility testified that his proposal to remove Petitioner was based solely on Petitioner’s conduct and not his disability. In so finding, the MSPB AJ emphasized that Petitioner admitted the vast majority of the misconduct alleged by the Agency. Finally, the MSPB AJ concluded that the probative evidence failed to persuasively show that Petitioner had been subjected to reprisal. While the MSPB AJ considered Petitioner’s contention that evidence of retaliatory motive could be seen in the Agency’s decision to reassign him following his reinstatement, the AJ found that Petitioner failed to demonstrate that the Agency’s actions were contrary to Agency policy. Furthermore, the MSPB AJ found that the Unit Chief 2022000384 5 credibly testified when he stated that the removal action was based solely on Petitioner’s misconduct. For these reasons, MSPB AJ rejected Petitioner’s affirmative defenses. The MSPB AJ’s initial decision became the final decision of the Board on September 22, 2021. Petitioner subsequently filed the instant petition with the Commission on October 22, 2021. ARGUMENTS IN PETITION Through his attorney, Petitioner asserts that the Unit Chief’s “directives to work in the new work position posed an imminent risk to his health which precluded the completion of the assigned tasks.” In so arguing, Petitioner maintains that performing the “duties associated with the transportation function of a Material Expediter caused him anxiety, which in turn caused chest pain, and otherwise harmed his cardiac health.” Petitioner asserts that the MSPB AJ, in finding that he was substantially limited in his ability to sleep, failed to recognize that he is also substantially limited in the major life activities of concentrating, thinking, and communication. He concludes by stating “[t]he MSPB Judge in not granting relief on this evidence of disability discrimination constitutes clear legal error.”2 The Agency opposes the petition and requests that the Commission concur with the MSPB, as the petition is devoid of any evidence of discrimination other than Petitioner’s very conclusory claim of discrimination. STANDARD OF REVIEW EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. § 1614.305(c). ANALYSIS AND FINDINGS As an initial matter, we note that Petitioner has not raised any specific contentions in his petition regarding disparate treatment and/or reprisal. The only matter raised in the petition that is within the Commission’s jurisdiction concerns Petitioner’s denial of reasonable accommodation affirmative defense. Accordingly, we will exercise our discretion to limit our analysis to that 2 Petitioner’s attorney also appears to allege that the MSPB AJ, in failing to find in favor of Petitioner despite making numerous references to Petitioner’s disability and prior MSPB appeal, committed a prohibited personnel practice. As such allegations are outside the Commission’s jurisdiction, we will not consider it. See Davis v. Dep’t of Homeland Sec., EEOC Appeal No. 01A53256 (Apr. 7, 2016) (affirming agency’s dismissal of complaint that alleged reprisal related to whistleblower activities and prohibited personnel practices) 2022000384 6 affirmative defense. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614(EEO MD-110) Chap. 9, at § IV.A (Aug. 5, 2015) (“Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal.”). Denial of Reasonable Accommodation 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. 29 C.F.R. §§ 1630.2(o) and (p). To establish that the Agency denied Petitioner a reasonable accommodation, Petitioner must show that: (1) he was an individual with a disability; (2) he was a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). Assuming arguendo that Petitioner was a qualified individual with a disability during the relevant period, we agree with the MSPB AJ that the probative evidence fails to show that the Agency denied Petitioner reasonable accommodation. As discussed above, and in the MSPB AJ’s decision, the record shows that the Unit Chief testified that he granted Petitioner’s reasonable accommodation request to not drive in Building 3001. We understand that Petitioner asserted during the hearing that he never requested that accommodation and that the provided accommodation did not effectively address his needs. Under our regulations, “[i]f a reasonable accommodation turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship.” Enforcement Guidance on Reasonable Accommodation at Q. 32. We note that the Unit Chief, as Petitioner’s supervisor of record, was the approving authority for Petitioner’s reasonable accommodation request. We agree with the MSPB AJ that the probative record shows that the Petitioner prematurely ended the interactive process when he declined to engage with the Unit Chief to find a suitable accommodation. Furthermore, like the MSPB AJ, we also note that Petitioner failed to provide any additional medical evidence that would substantiate his claimed need for additional accommodation. As such, we are disinclined to find any violation of the Rehabilitation Act. 2022000384 7 CONCLUSION Based upon a thorough review of the record, we CONCUR with the final decision of the MSPB finding no discrimination. PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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. 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 Petitioner’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 February 28, 2022 Date