[Redacted], Russel B., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 28, 2021

Appeal No. 2020003729 (E.E.O.C. Oct. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Russel B.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003729 Hearing No. 420-2019-00310X Agency Nos. ARRUCKER18SEP03576 and ARRUCKER18NOV04363 DECISION On June 10, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 10, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Firefighter and Firetruck Driver, GS-6, at the Agency’s Directorate of Public Safety, Fire Protection Division in Fort Rucker, Alabama. On October 23, 2018, December 10, 2018, and February 15, 2019, Complainant filed three formal EEO complaints claiming that the Agency discriminated against him based on race (African-American), sex (male), religion (Baptist), age (51), and in reprisal for protected EEO activity (prior activity). Complainant’s three formal complaints were consolidated and the claims therein were framed as follows: 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. 2 2020003729 1a. Since October 2017, management officials subjected Complainant to multiple medical appointments which they scheduled to assess Complainant's fitness; 1b. On September 11, 2018, management changed Complainant's duties to include participation in all departmental structural firefighting drills and training; and 1c. On September 27, 2018, management issued an additional memorandum to advise Complainant that he was expected to participate in the full structural firefighting training by October 15, 2018. 2. On October 29, 2018, MAJ was directed by the Battalion Chief to deem Complainant not clear for duty as a Firefighter. 3. When Lieutenant Colonel (LTC) who was Director of Public Safety, directed Complainant's removal from Federal Service, effective January 19, 2019. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s February 21, 2020, motion for a decision without a hearing and issued a decision by summary judgment on March 20, 2020. When the Agency did not issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding no discrimination became the Agency’s final action, pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. According to Complainant, the Agency assessment of his unfitness was a pretext. Complainant maintained that Agency management was actually motivated by retaliatory and discriminatory animus. ANALYSIS AND FINDINGS The Commission’s regulations allow an administrative judge 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. Summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. See 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. See 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. See Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. See 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. 3 2020003729 An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. 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. On appeal and though his representative, Complainant has not demonstrated the record to be deficient. Additionally, Complainant’s appeal has not presented evidence that effectively disputes the AJ’s factual findings. Complainant expressed disagreement with the AJ’s factual findings but failed to prove that the underlying evidence of record was insufficient or contradictory. We examine Complainant’s claims regarding in the context of disparate treatment the three-party analysis from McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that reasonably give rise to an inference of discrimination-that a prohibited consideration (to include race, gender, age or having engaged in EEO protected activity) was a factor in any of the Agency’s adverse employment actions. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met the second burden, Complainant bears ultimate responsibility to persuade us by a preponderance of the evidence that the Agency’s explanation was a pretext to hide an EEO- prohibited motivation. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). We assume without so finding that Complainant made his prima facie case. However, the Agency provided legitimate explanations for all of the matters Complainant claimed were discriminatory. Structural Firefighting Training - Claim 1b and Claim 1c In Claims 1b and 1c, Complainant has claimed that management lacked the authority to order him to participate in “hands-on” structural firefighting training. According to witnesses, the structural firefighting training involved setting fire to a specialized training facility and then putting the fire out. All but one of Complainant’s other co-workers willingly participated in these training exercises. The Battalion Chief explained that management had made a business decision to prioritize positional cross-training among its firefighters. We find that professional cross-training was a valid justification for management to direct Complainant to attend structural firefighting training. Even if structural firefighting was not expressly included in the driver position description, we cannot find that a reasonable person in Complainant’s firefighting position would agree that he was subjected to conduct that could be characterized as abusive. To the contrary, the Agency appropriately expected Complainant to participate in cross-training beyond regular driving duty so that he would be prepared to assist his fellow fighters in an emergency firefighting situation. 4 2020003729 Fitness for Duty - Claim 1a, Claim 2, and Claim 3 Regarding Claim 1a, normally, the Occupational Health Clinic evaluated each firefighter annually. After October 2017, Complainant was examined more frequently. The Occupational Health Clinic’s lead doctor, MAJ (Caucasian, male, age 51, no EEO activity) stated Complainant had developed chronic conditions that warranted scheduling follow-up appoints to monitor those conditions. The Occupational Health Clinic monitored Complainant’s weight and A1C levels to see if his overall health improved over the next year. Later, Complainant’s A1C levels showed that his Type II Diabetes was under control. Complainant’s weight, however, did not improve between from October 2017 through 2018. In accordance with the National Fire Protection Association (NFPA) 1582 Guidelines, body mass index (BMI) may be taken into account in assessing a firefighter’s whole physical health. A BMI calculation in excess of 30 is considered obese. A BMI calculation in excess of 40 is considered severely obese. In October 2017, the Occupational Health Clinic determined that, based on height and weight, it calculated Complainant had a BMI in excess of 50. Complainant was advised that he needed to lose weight. MAJ set losing seventy pounds as a target in order for Complainant to achieve a BMI of forty. Complainant received advice on safe weight loss programs. At Complainant’s 2018 evaluation, the Occupational Health Clinic found that Complainant’s weight remained virtually unchanged since 2017. As a result, Occupational Health Clinic was recommended that Complainant was unfit for firefighting duties and that he be reassigned to limited administrative ones. Regarding Claims 2 and 3, MAJ denied management had directed the Occupational Health Clinic to find Complainant unfit. MAJ explained that the Occupational Health Clinic only made fitness recommendations that Complainant’s chain-of-command then had discretion to follow the Occupational Health Clinic. In the alternative, managers could have decided that operational needs exceeded the Occupational Health Clinic’s fitness recommendation. In Complainant’s case, the Agency chose to follow the advisory opinion from the Occupational Health Clinic. During the investigation, testimony had revealed that, through this same process, the same managers had removed at least one other firefighter based on medical unfitness after an Occupational Health Clinic recommendation under the NFPA guidelines. To the extent that Complainant’s supervision had applied the NFPA guidelines inconsistently, Complainant did not evidence that management removed him because of his race, age, or in reprisal for EEO- protected activity. Aside from his own uncorroborated declarations, Complainant failed to prove that the Agency’s training orders or removal for unfitness were based on unlawful animus against him. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the AJ’s decision without a hearing, finding no discrimination, which became the Agency’s final decision. 5 2020003729 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 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 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, 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. 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). 29 C.F.R. § 1614.403(g). Either party’s request 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. 29 C.F.R. § 1614.604(c). 6 2020003729 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 28, 2021 Date