[Redacted], Orval T., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Feb 16, 2021

Appeal No. 2020000985 (E.E.O.C. Feb. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Orval T.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020000985 Hearing No. 570-2018-00197X Agency Nos. IRS-17-0217-F IRS-17-0425-M DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 1, 2019, final order concerning his equal employment opportunity (EEO) complaint alleging employment 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, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency discriminated against him based on his disability when he was demoted and allegedly denied a reasonable accommodation. 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. 2020000985 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Criminal Investigator/Special Agent (GS-1811-14) at the Agency’s Field Office in Washington, D.C. On June 20, 2006, and October 24, 2006, Complainant underwent an audiogram, and the Agency found that the results showed that Complainant did not meet the hearing standards for his GS-1811 position, and he was instructed to schedule a functional hearing test.2 Report of Investigation (ROI) at 100, 102. On July 12, 2007, the Agency placed Complainant on Temporary Restricted Duty (TRD) due to his hearing loss. The Agency informed Complainant that while on TRD, he would be relieved of his government-issued weapon, but he would retain his 1811 status and that in most instances, his Law Enforcement Availability Pay (LEAP) would continue. ROI at 112-13. Complainant notified the Agency that he planned to have surgery on January 30, 2008. ROI at 126. On November 17, 2009, Complainant submitted to another functional hearing test, and the Agency determined that Complainant’s hearing levels did not fall within the requirements of the GS-1811 qualification standards. The Agency informed Complainant that he needed to undergo another functional hearing test to ensure that the Agency has consistent, reliable, and accurate information and that he would remain on TRD until further notice. ROI at 172-3. On November 17, 2010, the Agency returned Complainant to full duty due to a change in the Agency’s policy when it revised its medical policy and no longer required mandatory audiograms as part of the annual medical assessment. ROI at 207, 205. On July 19, 2012, the Agency informed Complainant that it is required to review any medical issues that affect an agent’s ability to meet the special agent’s medical standards and/or impact safe performance of the 1811 law enforcement duties. As such, the Agency notified Complainant that he required an updated functional hearing test to determine if he met the medical standards and placed him on TRD pending further evaluation. ROI at 267. On March 27, 2013, the Agency informed Complainant that he did not meet the GS-1811 Treasury Enforcement Agent Qualification Standards for hearing and could not hear sufficiently to safely perform law enforcement duties. The Agency noted that its decision was based on Complainant’s audiogram, functional hearing test, and an independent medical evaluation. The Agency informed Complainant that he could request a reconsideration of the decision and provide updated medical documentation; request a reasonable accommodation; or consider workers’ compensation or disability retirement. The Agency stated that Complainant would retain his 1811 status and LEAP, while on TRD status, until further notice. ROI at 289-92. On April 5, 2013, Complainant requested a reconsideration and a reasonable accommodation for a medical waiver and the ability to use a hearing aid. ROI at 294-5. On May 2, 2014, the Agency informed Complainant that he remained non-medically qualified, but that it worked with the Office of Personnel Management to investigate the possibility of developing standardized procedures to 2 A functional hearing test is a comprehensive individualized hearing assessment used to evaluate whether an agent can safely carry out law enforcement duties. ROI at 641. 2020000985 3 assess the use of hearing devices on a case-by-case basis. The Agency stated that it developed an Aided Hearing Test Protocol as an optional test. ROI at 319-20. On August 11, 2014, Complainant submitted documentation for the Aided Hearing Test Protocol. ROI at 325-42. On October 7, 2016, the Agency issued Complainant a Notice of Final Medical Determination and Job Offer. The Agency stated that Complainant elected to participate in the Aided Hearing Test Protocol and provided the requested information. The Agency determined that Complainant’s hearing loss was to the point where he could no longer safely perform the full range of law enforcement duties. The Agency offered Complainant the option to take a voluntary change to a lower-graded GS-1801-13 Investigative Specialist position, which was considered a secondary law enforcement position that retains law enforcement retirement coverage but does not qualify for LEAP. The Agency also informed Complainant that he could pursue a reasonable accommodation. Complainant accepted the offer to the GS-1801-13 position on November 25, 2016. ROI at 440-1. On November 17, 2016, Complainant initiated a reasonable accommodation request. ROI at 444- 5. On November 22, 2016, a Reasonable Accommodation Coordinator (RAC) contacted Complainant to schedule a meeting to discuss his request. ROI at 446. On January 17, 2017, Complainant informed RAC that he would not be seeking a reasonable accommodation. ROI at 465. The Agency processed Complainant’s reassignment from a Criminal Investigator (GS-1811-14/8) to Investigative Specialist (GS-1801-13/10), effective February 19, 2017. ROI at 525. On March 22, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his disability (single-sided hearing loss) when: 1. on February 19, 2017, Complainant was demoted from a Criminal Investigator (GS-1811-14/8) to an Investigative Specialist (GS-1801-13/10) (Case No. IRS-17- 0425-M); and 2. on February 19, 2017, management denied Complainant a reasonable accommodation by refusing to waive a medical qualification standard or permit him to use a hearing aid to meet the standard; and further denied him a reasonable accommodation when they reassigned him from a Criminal Investigator (GS-1811- 14/8) to an Investigative Specialist (GS-1801-13/10) (Case No. IRS-17-0217-F). On April 3, 2017, the Agency informed Complainant that it would process claim 1 as a mixed- case complaint and claim 2 as a non-mixed complaint. ROI at 34. Complainant filed a mixed-case appeal with the Merit Systems Protection Board (MSPB). On August 22, 2018, an MSPB Administrative Judge issued an initial decision that dismissed Complainant’s appeal regarding his demotion because the MSPB lacked jurisdiction over the matter. On October 24, 2018, Complainant filed a petition with the EEOC seeking review of a final order issued by the MSPB. 2020000985 4 The Commission found that it had no jurisdiction to review Complainant’s petition and considered his case to be a “non-mixed” case and ordered the Agency to process his complaint accordingly. Orval T. v. Dep’t of Treasury, EEOC Petition No. 2019001047 (Dec. 4, 2018). At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s March 22, 2019 motion for a decision without a hearing and issued a decision without a hearing on September 9, 2019. The AJ found that the investigative record was adequately developed and that there were no genuine issues of material facts, and that the case was appropriate for summary judgment. The AJ noted that Complainant did not dispute the majority of the Agency’s proffered facts, and the only fact that he disputed was whether he could have been accommodated in the position that he temporarily encumbered prior to his demotion to the Investigative Specialist position. The AJ stated that Complainant’s entire legal argument rests on his belief that the Agency was obligated to accommodate him by placing him in his TDR position, and that the Agency effectively created the Senior Analyst position for him through its delay in determining if Complainant was medically qualified for a Special Agent position. However, the AJ determined that Complainant’s assertions were incorrect. The AJ stated that there was no indication that Complainant was permanently reassigned into the Senior Analyst position. The AJ stated that five years was a lengthy time for the Agency to ascertain whether an employee is medically qualified for a position. However, the AJ noted that Complainant’s case was exceedingly complex, and that the Agency granted all of Complainant’s requests to retake his hearing tests, which he was unable to pass. The AJ determined that at this point, the Agency determined that Complainant was no longer qualified for his position and offered him a reassignment at a lower grade. The AJ noted that it is well-settled that agencies are not obligated to create positions for an individual with a disability. The AJ stated that if he accepted Complainant’s argument that the Agency’s delay in reassigning him effectively created a position for him, then agencies would not have an incentive to accommodate employees with light duty or temporary modifications to their assignments. Further, the AJ noted that the process was delayed by Complainant by his requests to re-take the hearing tests, and that penalizing the Agency for satisfying its obligation to accommodate Complainant in connection with his medical tests would be a perverse result and contrary to the law. The AJ concluded that the Agency did not discriminate against Complainant based on his disability when it reassigned him to an Investigative Specialist position. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal and submitted a brief in support of his appeal. The Agency opposed Complainant’s appeal. 2020000985 5 CONTENTIONS ON APPEAL Complainant’s Contentions Through his attorney, Complainant argues that there is a genuine dispute regarding his status as a “qualified individual with a disability.” Complainant asserts that the Agency did not dispute that he was unable to perform the essential functions of his Criminal Investigator position and “formally reassigned” him to a Senior Analyst position, which exempted him from performing law enforcement duties. Complainant argues that the Agency was aware that his hearing loss was permanent and that he had “essentially been given a new formal position,” and that this is the “held or desired” and “customarily performed” position to determine if Complainant is a qualified individual with a disability. Complainant asserts that the Senior Analyst position was “not a short term informally created position, and hardly temporary,” which he held for over nine years. Complainant states that while an agency is not required to create a “new” position, the Agency reassigned him to a Senior Analyst position, and that it did not temporarily eliminate an essential function. Complainant states that he asked that management officials consider reassigning him to a GS-1811 position with Financial Crimes Enforcement Network (FINCEN), but he never received a response. Complainant also states that the Agency did not meet its burden to show an undue hardship with keeping Complainant in a Senior Analyst position. Agency’s Contentions The Agency asserts that it is undisputed that on July 19, 2012, the Agency placed Complainant in a TRD status because the near-total hearing loss in his right ear did not meet the medical standards of his GS-1811 position, and that he was assigned to the position of “Senior Analyst,” a position that restricted his participation in law enforcement activities such as warrant executions, making arrests, or engaging in undercover operations or protective details in dangerous environments. The Agency states that during this period of restricted duty, Complainant sought Agency reconsideration of his medical case, and despite the fact that Complainant’s TRD status precluded his participation in law enforcement activities during this period, the Agency continued his LEAP pay. The Agency notes that the AJ found that that the temporary position Complainant encumbered while on TRD did not constitute a permanent reassignment. Regarding Complainant’s reasonable accommodation request, the Agency states that RAC contacted Complainant seven (7) days after he submitted his request for an accommodation to a position of a GS-1811 Senior Analyst. The Agency asserts that it is undisputed that, over the next month and a half, Complainant subsequently ignored RAC’s attempts to engage him in the interactive process, and on January 17, 2017, he advised RAC that “I will not be seeking a reasonable accommodation.” The Agency requests that the Commission affirm its final order adopting the AJ’s decision. 2020000985 6 ANALYSIS AND FINDINGS Standard of Review, In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Decision without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant argued that there is a genuine dispute regarding his status as a “qualified individual with a disability.” 2020000985 7 Complainant asserted that his Senior Analyst position was the “held or desired,” and “customarily performed,” position to determine if Complainant is a qualified individual with a disability. However, we find that Complainant has not raised a genuine dispute regarding his position. While Complainant argues that the Agency “formally reassigned” him, and that he had “essentially been given a new formal position,” there is no evidence to support Complainant’s assertion. The record shows that the Agency repeatedly communicated that it had placed Complainant on a Temporary Restricted Duty, pending numerous assessments of his ability to perform his Criminal Investigator duties, and there is no evidence that the Agency placed Complainant into a Senior Analyst position as a reassignment or a “new formal position.” While Complainant asserted that the Senior Analyst position was “hardly temporary,” and that he served in the position for nine years, we note that the Agency allowed Complainant to remain in the Senior Analyst position, while it conducted multiple retests of his hearing and to consider his request to use a hearing aid, and there is no evidence that the Agency placed Complainant into the Senior Analyst position on anything other than a temporary basis. In addition, the Commission has found that an employer is not required to transform its temporary light duty jobs into permanent jobs to accommodate an employee’s disability. See Aguillard v. Dep’t of Justice, EEOC Appeal No. 0720040056 (Nov. 21, 2006); Marso v. Dep’t of Justice, EEOC Appeal No. 07A10094 (May 15, 2003), request for reconsideration denied, EEOC Request No. 05A30864 (June 16, 2004). As such, we find that the AJ properly issued a decision without a hearing. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of disability discrimination, we find that the Agency proffered legitimate, nondiscriminatory reasons for demoting him from a Criminal Investigator (GS-1811-14/8) to an Investigative Specialist (GS-1801-13/10). 2020000985 8 The Chief, Criminal Investigation (CCI) stated that if a Medical Review Officer determines that an agent cannot safely carry out law enforcement duties, then reassignment to a non-1811 position is considered. CCI stated that an agent may choose to accept the offer or request a reasonable accommodation, which would trigger a reassignment search for a vacant, funded position. ROI at 659. The Associate Medical Director/Medical Review Officer stated that due to Complainant’s hearing loss, he was unable to complete all the essential functions of his Criminal Investigator position without risking harm to himself and others, and that in his case, wearing a hearing aid would route sound from his left and right ear at the same time, which would significantly affect his ability to comprehend and localize sound. ROI at 672-3. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Here, Complainant did not offer any arguments or evidence that the proffered reasons were not worthy of belief. As such, we find that Complainant did not establish that the Agency discriminated against him based on his disability when it demoted him from a Criminal Investigator (GS-1811-14/8) to an Investigative Specialist (GS-1801-13/10). Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is 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, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). 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), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to accommodate Complainant on February 19, 2017. The record shows that in the October 7, 2016 Notice of Final Medical Determination and Job Offer, the Agency informed Complainant that he could request a reasonable accommodation to seek an alternative, vacant, funded position as an accommodation. ROI at 440- 2020000985 9 1. On November 17, 2016, Complainant initiated his reasonable accommodation request and RAC repeatedly interacted with Complainant to discuss his request. ROI at 444-5, 452-463. On January 17, 2017, Complainant informed RAC that he would not be seeking a reasonable accommodation. ROI at 465. On appeal, Complainant argued that the Agency failed to respond to his request to be reassigned to a position in FINCEN, and that the Agency did not meet its burden to show an undue hardship with keeping Complainant in a Senior Analyst position. However, Complainant withdrew his reasonable accommodation request before the Agency could conduct a reassignment search. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on his disability because it did not fail to accommodate him. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency discriminated against him based on his disability when he was demoted and allegedly denied a reasonable accommodation. 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 2020000985 10 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. 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. 2020000985 11 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 February 16, 2021 Date