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

Equal Employment Opportunity Commission

Feb 24, 2021

Appeal No. 2019005363 (E.E.O.C. Feb. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Quinn B.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2019005363 Agency No. 9P0J18012TF19 DECISION On July 19, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 7, 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sheet Metal Mechanic, WG-3806-10, at the Agency’s Randolph Air Force Base in Texas. On April 19, 2018, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him and subjected him to a hostile work environment on the basis of his disability (Post-Traumatic Stress Disorder) when: 1. On February 21, 2018, Complainant’s Supervisor (S1) informed employees they would have to work mandatory overtime on February 24, 2018. Complainant informed S1 that he would not be able to work on that day. S1 told Complainant that he would be written up if he did not come in; 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. 2019005363 2 2. On March 2, 2018, Complainant was issued a Memorandum for Record (MFR - leaving job without permission) by S1 for going to meet with the Director. Complainant stated he had an appointment and was on his break time and scheduled leave; 3. On March 3, 2018, when Complainant did not show up for overtime, he sent a text to S1 that he was sick. S1 told him that he would make a note (MFR) that this was the second consecutive Saturday that he missed; 4. On March 5, 2018, Complainant was issued a Request for Medical Documentation after he asked for a hardship (allow him to stay on first shift due to mental health issues that are currently well-controlled) per his doctor’s note; 5. On March 5, 2018, S1 told Complainant that if he did not provide the medical documentation, this could lead to further action. S1 told Complainant that if he could not do rotating shifts, he would not be fit to do the job, since he would not be doing his job; 6. On March 7, 2018, when Complainant requested a copy of the March 2, 2018 MFR, S1 told him “I’ve also included a copy of the reference we used and actions we can take if you continue to do the same actions;” 7. Since March 16, 2018, to present, after submitting a Work Restriction Evaluation Form, S1 is making rules and not allowing Complainant to work overtime based on his doctor’s letter, which does not state he cannot work overtime; 8. Ongoing since May 2018, S1 requires Complainant to present documents for his VA appointments and will not grant him leave if he does not provide documentation or wants to use those hours for sick leave, non-VA doctor appointments or other time off, as he was told he could by civilian personnel; and 9. On June 7, 2018, S1 provided Complainant a copy of his Progress Review and Appraisal. Complainant was told he was not granted a bonus even though he went above and beyond his duty requirements. Complainant voluntarily elected to participate in the Agency’s Compressed, Orderly, Rapid and Equitable (CORE) pilot program. Pursuant to his request, the Agency held a CORE Fact Finding Conference on August 14, 2018. The Agency subsequently issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency found that Complainant was not subjected to discrimination or a hostile work environment as alleged. The instant appeal followed. Complainant’s position required him to work shifts or uncommon tours of duty and he was subject to call back to meet emergency situations. In terms of claim (1), Complainant claimed that he informed S1 that he would be unable to report for overtime on February 24, 2018, due to a previously scheduled court date. 2019005363 3 One of Complainant’s coworkers testified that he heard S1 respond that he was going to write Complainant up. S1 stated that he advised all of the employees, not just Complainant, that they would be written up if they did not come in to work mandatory overtime, but that he would consider requests for excused absences on a case by case basis. S1 asserted that he approved Complainant’s absence for February 24, 2018, so that he could resolve a speeding ticket. According to S1, he asked Complainant to notify him when he finished taking care of the ticket so that he could work the remainder of the shift, but Complainant did not call him or come to work. Complainant was later issued a March 12, 2018 Letter of Counseling for his failure to report for mandatory Saturday overtime on February 24, March 3, and March 10, 2018. With respect to claim (2), Complainant explained that he had medical leave scheduled for 1:30 p.m. until the end of his duty day and he had also scheduled a 1:30 p.m. meeting with the Director. Complainant acknowledged that he arrived five minutes early for his meeting with the Director but maintained that he left work during his regular 15-minute break. According to Complainant, he did not think he needed to inform S1 about his meeting with the Director because S1 knew about his medical appointment. Complainant claimed that he should not have been issued the MFR for leaving work early because he was on leave at the time. According to S1, he approved two hours of disabled veteran leave for Complainant starting at 1:30 p.m., but that around that time he received a phone call from the Director’s office asking whether he was aware that Complainant had been there waiting for his appointment since 1:00 p.m. S1 stated that he was informed that this was not the first time that Complainant had waited in the Director’s office for an appointment. S1 explained that he was unaware of Complainant’s appointment and he issued him the MFR to make Complainant aware of his unauthorized leave from his designated work area. The Director’s Deputy, the Operations Officer, stated that he routinely called supervisors when he saw employees away from their duty stations to determine if there was a valid reason for their absence from the workplace. The Operations Officer stated that he did not recall telling S1 that Complainant had been there for 30 minutes, but he expressed his concern that Complainant had been away from the workplace for a significant amount of time. With regard to claim (3), S1 stated that on March 3, 2018, Complainant requested sick leave and he responded this was the second consecutive mandatory Saturday overtime he had missed. S1 stated that Complainant again requested sick leave on March 10, 2018, and he informed Complainant that he did not approve the request and he would note this was the second consecutive Saturday he had requested sick leave. As to claim (4), in January 2018, Complainant submitted a note from his physician recommending that he not work the second shift due to his mental health condition which was well controlled at that time. On March 5, 2018, Complainant wrote a letter to the Director stating that he had Post- Traumatic Stress Disorder (PTSD) and was unable to work rotating shifts due to his medication schedule. S1 responded by issuing Complainant a Request for Medical Documentation to allow the Agency to determine the impact his medical condition had on his ability to fulfill his duties. 2019005363 4 With respect to claim (5), Complainant stated that S1 told him that if he did not provide the medical documentation, this could lead to further action, and if he could not do rotating shifts, he would not be fit to perform the job since he would not be doing his job. S1 acknowledged that he informed Complainant that shift changes were a job requirement under his position description but did not address whether he had advised Complainant that his failure to provide the requested medical documentation could lead to further action. The request for medical documentation included a statement, “Submission of this current, complete medical evaluation is in your best interest, as your failure to do so may result in denial of your current accommodation.” As for claim (6), Complainant stated that he requested a copy of the March 2, 2018 MFR, and S1 told him that he included a copy of the reference that was used and the actions that can be taken if he continues to do the same actions. S1 admitted making this statement to Complainant. With regard to claim (7), Complainant asserted that since he submitted a Work Restriction Evaluation Form from his psychiatrist on March 16, 2018, S1 has not permitted him to work overtime even though the medical documentation does not state that he can not work overtime. In the Evaluation Form, Complainant’s psychiatrist diagnosed Complainant as having chronic, severe Post-Traumatic Stress Disorder; recurrent major depression; and severe generalized anxiety. According to the psychiatrist, Complainant’s PTSD caused “anger, irritability, insomnia, being on edge, high reactivity to noises…may even experience flashbacks in which he feels his trauma is happening all over again.” The psychiatrist explained that Complainant was physically and mentally able to perform all of his assigned duties with the exception that his mental health may decline if he works the second shift. The psychiatrist further stated that it was not appropriate for Complainant to work Saturdays. The psychiatrist asserted that these restrictions were necessary because limiting Complainant to working the first shift and a regular five-day work week allowed him adequate rest and afforded him an opportunity to practice coping skills and other forms of recovery. The psychiatrist further stated that failure to accommodate Complainant’s needs by requiring him to work the second shift and/or to work six days a week would result in sleep disruption, disruption of his home life and working relationships, and increased volatility of mood and behavior. On June 15, 2018, the psychiatrist stated that when Complainant determines that his stress level is reduced, he may work on the weekends/overtime as this gives him a sense of reward and purpose. Complainant acknowledged that after he submitted a doctor’s note stating that he could work overtime if he wished, he has been allowed to work overtime on Saturdays. In terms of claim (8), Complainant maintained that Civilian Personnel advised him that he could use VA Leave whenever he felt he needed to utilize it and without having to provide his supervisors with supporting medical documentation. Complainant asserted that although he was never denied VA Leave, he was required to provide management with supporting medical documentation and was not allowed to use VA Leave for regular medical appointments, sick leave, or other time off. The Agency stated that based on an Office of Personnel Management fact sheet addressing Disabled Veteran Leave under the Wounded Warriors Federal Leave Act of 2015, disabled veterans can only use veterans’ leave to undergo medical treatment for a disability related to their VA disability rating. The Agency added that under the terms of the statute, agencies can require the disabled veteran to provide a signed medical certification from a health care provider that the treatment was for a qualifying service-connected disability. 2019005363 5 As for claim (9), S1 acknowledged that Complainant did not receive a bonus pursuant to his Progress Review and Appraisal. S1 stated that Complainant did not receive the bonus because he did not perform above and beyond his duty requirements. S1 stated that supervisors placed bullet statements in the performance appraisals of employees who had gone over and above their job requirements, but that he had not written any statements in Complainant’s appraisal because he had never trained anyone and merely had done his job. According to S1, the performance evaluation at issue covered Complainant’s first year of employment and that employees usually spent their first year familiarizing themselves with the duties of their position. S1 stated that no first-year employee received a bonus. S1 further stated that employees were afforded the opportunity to place their accomplishments in their appraisals, but Complainant did not offer any input. Two of Complainant’s coworkers testified that they had not received a bonus and one of these coworkers also testified that S1 told him the same thing he told Complainant, that he did not receive a bonus because he needed to train people. CONTENTIONS ON APPEAL On appeal, Complainant contends S1 lied about the number of employees who attended the mandatory overtime and singled him out even though he knew he had a valid reason for not being present. Complainant states that he was written up after missing consecutive overtime Saturdays even though S1 knew as early as August 2017 of his PTSD condition, and that it was a factor in him not being able to work on Saturdays. Complainant contends that once S1 received additional documentation from his physician documenting his disability and inability to work overtime, S1 should have torn up the MFR. Complainant criticizes S1 for writing him up for not telling him he was going to see the Director even though he was on approved leave, it was the end of his duty and he was off work. Complainant argues that S1 admitted to writing the threatening remarks on the March 2, 2018 MFR copy, and he maintains that the MFR should have been torn up rather than remaining in his file. With regard to not receiving a bonus, Complainant claims that it is directly related to his disability since he was not able to work above and beyond his duties which would have included the mandatory overtime. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2019005363 6 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming, for purposes of this decision only, that Complainant established a prima facie case of discrimination based on his disability, we find that the Agency articulated, legitimate, non- discriminatory reasons for its actions as were set forth in detail above. Complainant attempts to establish pretext as to claim (1) by claiming that other employees were not told they would be written up if they did not report for mandatory overtime. S1 stated that he advised all of the employees, not just Complainant, that they would be written up if they did not come in to work mandatory overtime, but that he would consider requests for excused absences on a case by case basis. As to claim (3), Complainant claimed that other employees who did not report for mandatory overtime were not written up. However, the record reflects that Complainant only identified one individual outside his protected group who did not report for mandatory overtime. S1 testified that this employee in contrast to Complainant missed only one Saturday overtime, his absence had been excused in advance and also no other employees failed to report for overtime without being excused. We find that Complainant has not established as to claims (1) and (3) that the Agency’s stated reasons were pretext intended to hide discriminatory motivation. With regard to claim (2), Complainant challenges the Agency’s version of events. Complainant claims that he was on break when he left for his appointment with the Director and on VA leave during his appointment with the Director. Complainant asserts that he did not know that he needed to inform S1 about his meeting with the Director because S1 knew about his medical appointment. Complainant argues that he should not have been issued the MFR for leaving work early because he was on leave at the time. S1 stated that he approved two hours of disabled vet leave for Complainant starting at 1:30 p.m., but that around that time he received a phone call from the Director’s office asking whether he was aware that Complainant had been there waiting for his appointment since 1:00 p.m. S1 stated that he was informed that this was not the first time that Complainant had waited in the Director’s office for an appointment. We note that the record indicates that S1 did not adopt a policy requiring that he be told of appointments such as the one at issue until after Complainant’s meeting with the Director occurred. Nonetheless, there was sufficient basis for S1 to believe that Complainant had left work too soon for his appointment. As such, we find that Complainant has not established that the Agency’s explanation for its issuance of the MFR was pretext designed to mask discriminatory intent. As to claims (4-5), Complainant maintains that he should not have had to provide medical documentation because S1 had previously exempted him from shift work and mandatory overtime based on his doctor’s note and because no other employee had been asked to provide medical documentation to avoid rotating shifts. S1 stated that Complainant needed to submit medical documentation because he was requesting to not have to perform one of the requirements of his position. S1 further stated that other employees were required to provide medical documentation in support of similar requests if they sought to be excused from performing their duties. We observe that Complainant did not identify any employee who had been exempted from this requirement. 2019005363 7 Further, it was reasonable on the part of the Agency to request medical documentation when Complainant sought to be excused from mandatory overtime. Consequently, it was also reasonable for S1 to inform Complainant that failure to submit medical documentation could lead to further action. We find that Complainant has not shown that the Agency’s stated reasons for its actions were pretext intended to hide discriminatory motivation. With respect to claim (6), Complainant argues that he was on approved leave when he was waiting to see the Director and thus S1’s comment about the reference he relied on in his MFR and further actions he could take if Complainant continued to commit the same actions did not make sense. S1 stated that Complainant left work prior to the beginning of his scheduled 1:30 p.m. leave and that the MFR merely warned Complainant about the possible consequences of any future early, unauthorized departures. It is not clear exactly when Complainant left his duty area to meet with the Director. We are mindful that he also had a 15-minute break before 1:30 p.m. Nonetheless, there is not sufficient evidence to refute S1’s assertion that Complainant departed his workstation while he was still on duty and without informing him. We find that Complainant has not demonstrated that S1’s explanation for his remarks was pretext designed to mask discriminatory intent. With regard to claim (7), Complainant stated that subsequent to submitting a Work Restriction Evaluation Form from his psychiatrist on March 16, 2018, S1 did not permit him to work overtime even though the medical documentation did not state he cannot work overtime. The Agency asserted that it did not offer Complainant overtime after Complainant’s physician recommended that Complainant not work overtime on Saturdays. A review of the medical documentation submitted by Complainant’s physician reveals that the physician stated it was not appropriate for Complainant to work on Saturdays. Thus, the Agency complied with what the medical documentation stated by not providing overtime for Complainant. Complainant’s physician modified her recommendation in June 2018 when she stated that when Complainant determined that his stress level is reduced, he may work on the weekends/overtime. The Agency asserted that Complainant acknowledged that after he submitted the doctor’s note stating that he could work overtime if he wished, he has been allowed to work overtime on Saturdays. We find that Complainant has not established that the Agency’s explanation for how it decided to address his requests for overtime was pretext intended to hide discriminatory motivation. In terms of claim (8), Complainant maintained that S1 required him to submit medical documentation that other employees were not required to provide to utilize VA leave. Complainant stated that a Tool Room Attendant was able to utilize his VA leave in any manner he wanted without being required to submit supporting medical documentation. S1 asserted that he approved all leave requested by Complainant under the VA leave program. S1 pointed out that the Tool Room Attendant was not one of his employees and Complainant was the only one of his employees who used VA leave. We find that Complainant has not presented sufficient argument or evidence to demonstrate that S1’s policy that he needed to submit medical documentation to support his use of VA leave was pretext designed to mask discriminatory intent. 2019005363 8 With regard to claim (9), Complainant contended that he should have received a bonus because he was very good at his job, had done everything he was asked to do in a very proficient manner and had gone above and beyond what was expected of him. However, the record reflects that Complainant did not train any coworkers and S1 did not issue bonuses to any first-year employees. We find that Complainant has not established that the Agency’s explanation for not paying him a bonus was pretext intended to hide discriminatory motivation. Hostile Work Environment Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. 2019005363 9 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. 2019005363 10 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 24, 2021 Date