[Redacted], Stan H., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 26, 2021

Appeal No. 2020002150 (E.E.O.C. Apr. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stan H.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020002150 Hearing No. 430-2019-00043X Agency No. 18-65923-00716 DECISION On January 13, 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 December 16, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked in the Production Controller (Aircraft) Task Manager position, GS-1152-11, for the Agency’s Fleet Readiness Center East (FRC East) located at the Marine Corps Air Station in Cherry Point, North Carolina. On March 20, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment on the bases of disability (Post Traumatic Stress Disorder (PTSD)) and in reprisal for prior protected EEO activity (instant complaint) for requesting 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. 2020002150 2 1. Beginning on May 30, 2017 to present, Person A and Person B failed to provide him reasonable accommodation for his disability; and 2. On December 15, 2017, Person B, first-line supervisor, approved a medical accommodation for his disability that Complainant did not believe was reasonably effective. At the conclusion of the 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 requested a hearing. In the Order on Initial Conference, Deadlines, and Record Completion, the AJ noted that, “While Complainant ultimately received an effective reasonable accommodation, Complainant’s theory is that the Agency unreasonably delayed the processing of his request for the reasonable accommodation.” Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on September 30, 2019. In that decision, the AJ erroneously stated that Complainant did not submit a response to the Agency’s motion for summary judgment. Complainant then filed a Motion to Vacate the September 30, 2019 decision, on the grounds that his response was neither acknowledged nor considered. On October 23, 2019, the AJ issued a new decision after taking into account and acknowledging Complainant’s initial response to the Agency’s motion for summary judgment. In the decision, the AJ noted that on June 7, 2017, Complainant submitted a request for an accommodation, advising the Agency that he suffered from PTSD and that he needed to work in an area free of noises and interruptions. Complainant requested a private office, away from noises and potential interruptions. In response, the Agency provided Complainant an interim accommodation, by moving him to the Plating Shop, which was not a closed office, and also gave him “noise-cancelling” headphones. The AJ noted Complainant seemed to accept and thrive in this work environment. His physician agreed with this accommodation and Complainant was allowed to remain there. The AJ noted that the record reflects the Agency made a good faith effort through the interactive process to attempt to accommodate Complainant’s request for a stress and noise free environment. Upon determining that the requested accommodation was not feasible, the Agency offered reasonable, effective alternatives, i.e., work location and noise-cancelling headphones. The AJ found while the Agency did not provide Complainant the assigned requested, private office, the Agency did provide an effective accommodation by reassigning him to the Plant Shop and issuing him noise-cancelling headphones. The Agency subsequently issued a final order on December 16, 2019. The Agency’s final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2020002150 3 On appeal, Complainant claims a hearing is necessary to make credibility determinations regarding the statements provided by his supervisors. Complainant notes that two witnesses stated that Person A and management were motivated to discriminate and/or retaliate against him. Complainant states that Employee 1, Task Manager, GS-11, stated that he thought Complainant’s medical condition or involvement in EEO activity impacted the way Person A and Person B treated Complainant and he believed it “pissed [Person A] off… I believe [Person A] blamed [Complainant] ...I felt this was retaliatory.” Complainant also points out that Employee 2 stated that “management thinks [Complainant] is using his medical condition to receive special treatment…I feel this is why it has taken them an extended period of time to answer his reasonable accommodation.” Complainant notes the Agency argues it should not be responsible for the delay in accommodating him because it provided him a temporary accommodation in the Plating Shop. However, Complainant argues that the reason he was sent to the Plating Shop in the first place was because two employees accused him of harassment in his prior work area and not as an accommodation. Further, Complainant notes that the Agency cites to its accommodation of him in July 2018, over a year after his initial request. Complainant argues this demonstrates that the alternative accommodation provided in December 2017 of noise-cancelling headphones was not effective. Further, Complainant argues this establishes that his initial request for a designated office space or a reassignment was reasonable, effective, and not an undue hardship on the Agency. Finally, Complainant claims that the Agency did not move for summary judgment on his accepted basis of retaliation. Complainant states the AJ’s October 2019 decision does analyze the claim of hostile work environment, but there is no analysis or mention of retaliation. Thus, Complainant requests a hearing to determine whether the Agency engaged in retaliation. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 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). 2020002150 4 In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. First, we address Complainant’s contention that two witnesses stated that the Agency was motivated by discrimination and/or retaliation. Regarding Employee 1’s statement that he believed Complainant’s medical condition or involvement in EEO activity “pissed [Person A] off,” we note that other than his subjective belief, Employee 1 does not cite to specific evidence in support of that belief. Additionally, we note Employee 1’s second statement was made in regards to an incident that resulted in Person A moving Complainant and Employee 1 off of a specific line (the AV8 PMI line) in which Employee 1 stated he, “believe[d] [Person A] blamed Complainant. Additionally, [Complainant] was told to move his work area from an upstairs office down to the shop floor, I felt this was retaliatory.” We find this statement does not constitute persuasive evidence that Person A’s actions surrounding the claims at issue was based on Complainant’s disability or in retaliation for his protected EEO activity. Similarly, we note that Employee 2, Task Manager, stated that he felt Person B and management “thinks [Complainant] is using his medical condition to receive special treatment” and stated he felt “this is why it has taken them an extended period of time to answer his reasonable accommodation.” However, we note Employee 2 did not cite any evidence in support of this blanket assertion. Thus, we find the statements by Employee 1 and Employee 2 insufficient to warrant a hearing. Next, we address Complainant’s assertion that he was moved to the Plating Shop in response to complaints that he was harassing other employees, rather than as an accommodation for his disability. Even assuming this was true, the record reveals that the Agency permitted Complainant to remain in the Plating Shop, as a temporary accommodation, during the interactive process. Complainant admitted that working in the Plating Shop was healthy and beneficial for his PTSD. We note that in a July 27, 2017 letter, Complainant’s psychologist ultimately asked management to accommodate Complainant by allowing him to stay in the Plating Shop. Further, we note Complainant relies on the Agency’s subsequent July 2018 accommodation as evidence of discrimination. However, we find the fact that the interactive process was subsequently reopened and that a different accommodation was later granted does not defeat the showing that the Agency made a good faith effort to provide Complainant a reasonable, effective accommodation for the claims at issue in this complaint. Finally, we reject Complainant’s contention that the AJ did not address his accepted basis of retaliation. As reflected in the AJ’s decision, the complaint is defined as encompassing a claim on harassment based on disability and reprisal for requesting a reasonable accommodation. 2020002150 5 In the present case, we find Complainant failed to establish that the Agency subjected him to harassment on his protected bases of disability or reprisal. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s decision finding no discrimination. 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. 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). 2020002150 6 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. 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 April 26, 2021 Date