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

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2020003663 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stuart M.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003663 Hearing No. 471-2019-00004X Agency No. ARTACOM17MAR00888 DECISION On June 4, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 15, 2020 final action 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant worked as an Illustrator, GS-1020-12, at the Agency’s U.S. Army Tank Automotive Command (TACOM), Life Cycle Management Command in Warren, Michigan. On August 25, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability (coronary artery disease) and in reprisal for prior protected activity when: 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. 2020003663 2 1. When from October 7, 2016 through August 2017, the Director, Solider Product Support Integration Directorate, NH-0346-04, denied Complainant’s reasonable accommodation request to telework three days a week. 2. Complainant alleged that he was subjected to discriminatory harassment when:2 a. From March 20, 2017 through August 2017, the Director, Solider Product Support Integration Directorate, NH-0346-04, reassigned him from a Technical Illustrator position to a Technical Writer position; b. Around November 1, 2017, the Director denied his request for Leave Without Pay (“LWOP”), and placed him on Absent Without Official Leave (“AWOL”), and removed illustration references from his reasonable accommodation; c. Around November 3, 2007, the Director attached Complainant’s medical documentation to an email sent to four other employees; d. On November 27, 2012, derogatory information was placed on his annual performance evaluation, by the Director; e. Around December 11, 2017, the Director instructed Complainant’s former supervisor (former S1) to deny Complainant’s approved LWOP dated December 12, 2017 to count Complainant as AWOL unless he invoked the Family Medical Leave Act (“FMLA”); and f. Around May 2, 2018, he learned that a personnel action had been issued changing his position from a 1020 Illustrator to a 1038 Writer on April 29, 2018. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. Complainant responded to the Motion. On May 5, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. The Agency subsequently adopted the AJ’s decision. The instant appeal followed. 2 For ease of reference, the Commission re-numbered Complainant’s claims as 2.a. - 2.f. 2020003663 3 ANALYSIS AND FINDINGS Reasonable Accommodation Under the Commission's regulations, an agency is required to made reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is an individual with a disability. During the period at issue, the Branch Chief was Complainant’s first level supervisor (“S1”) and the Supervisory Logistics Management Specialist was Complainant’s second level (“S2”). The Supervisory Logistics Management Specialist was Complainant’s third level supervisor (“S3”) and the Director was Complainant’s fourth level supervisor (“S4”). In 2011, Complainant informed S1 that he had been diagnosed with coronary artery disease and requested an accommodation to telework from home due to having undergo cardio-rehabilitation two days a week. He provided S1 with a letter from his physician who assessed his medical condition and provided a request for health maintenance. This accommodation request was approved. Complainant requested the same accommodation every year since 2011 to telework, and all requests were approved by S1 until October 2016. As of October 2016, S3 became the approving official for all accommodation requests. On or about October 24, 2016, Complainant submitted a renewed accommodation request for telework, now asking three days per week of telework to engage in cardio-exercise. S3, rather than automatically approving the request as had occurred in the past, asked Complainant to provide additional medical documentation to support his request, in addition to the document signed by a nurse, which he provided originally. Among other things, S3 apparently questioned why Complainant could not exercise in the base gym. While his request was pending further documentation and being considered, S4 approved Complainant to temporarily telework three days per week telework from December 2016 to March 2017. On February 27, 2017, his three- day per week request was officially granted by S4. Substantial record evidence supports the Agency’s finding that Agency management had accommodated Complainant within his medical restrictions. With the exception of a brief period, Complainant was allowed to telework three days per week as requested while management sought additional medical documentation supporting Complainant’s request. By February 2017, Complainant’s request was approved. In sum, the evidence simply does not support Complainant’s claim that the Agency failed in its duty to accommodate him by granting his request to telework three days per week. 2020003663 4 Harassment/Hostile Work Environment To prove his ongoing harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his disability or prior protected activity (previous requests for reasonable accommodation). Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). The record shows that on or around April 2016, the Agency undertook an organization-wide realignment of its programs. As part of this effort, a number of positions were abolished, including many Illustrator and Administrative positions. Complainant’s position was one of the positions eliminated to meet the directed 25% headquarters cut. S3 informed Complainant that in an effort to place him in a position where he would be able to contribute to the organization’s mission requirement, he was placing Complainant on a development assignment as a Technical Writer. S3 explained that because Complainant was not already qualified for the position, he instructed S1 to develop and implement a developmental assignment for the Complainant as a Technical Writer. As a result, a training plan was put forth to assist Complainant to become a Technical Writer. The training guidance provided that Complainant could perform illustration work if needed. However, S3 later learned that Complainant was performing more illustration work than writing, which he believed was stalling the effort to train Complainant to become a Technical Writer. On March 20, 2017, S3 revised the guidance of the training plan and advised Complainant that he could spend no more than 25% of time on illustration work. This plan was laid out to train Complainant as a Technical Writer while providing telework accommodation. In November 2017, Complainant requested to be allowed to telework on Tuesdays and Thursdays. His request was approved except on December 4, 2017, which was initially recorded as Absence Without Leave (“AWOL”). In January 2018, after a meeting with the Reasonable Accommodation Team, the AWOL was changed to Leave Without Pay (“LWOP”). There are no records of Complainant being coded as AWOL. On April 29, 2018, Complainant completed his training and was officially reassigned to the position of Technical Writer. According to S4, he stated that he and S3 made the decision to reassign Complainant to Technical Writer position. Prior to reassigning Complainant, S4 and S3 discussed the developmental assignment because the Illustrator position was obsolete. He stated that it was his job to help Complainant be successful as a Technical Writer. 2020003663 5 S4 noted that Complainant was not the only one struggling with the new position. Furthermore, S4 stated he did not think what management was asking Complainant “to do is hard. I know [Complainant] can be a successful Technical Writer.” Moreover, S4 stated that he approved Complainant’s reasonable accommodation requests to telework in the new position. S3 stated that on November 3, 2017, he attached Complainant’s medical documentation on an email to Complainant with a copy to four other management officials with a subject titled “reassignment.” He stated at that time, Complainant was being moved to former S1’s supervision and acting supervisor’s work group. S3 further stated the email was sent to Complainant and, “I courtesy copied Acting Director (would become his second line supervisor), S1 (new supervisor), and acting second line supervisor. S3 asserted that he was not sharing Complainant’s personal information. In addition, S3 stated that he received a medical note from S1 from Complainant’s doctor which stated, “[Complainant] is under my urologic care and his condition prohibits him from traveling from Maine to Massachusetts. All those included in the email had a “need to know” as they included the gaining team that would be training him.” He also noted that there was no specific medical condition listed and as a result, he forwarded the email to let the team know why Complainant could not commute to work on Tuesdays and Thursdays.” With respect to Complainant’s allegation that S3 retaliated against him and used derogatory information on his annual evaluation, S3 acknowledged he was the senior rater for the November 2017 evaluation. He noted Complainant had stopped coming to work in August 2017 and failed to turn in work assignments. The record shows Complainant received a satisfactory evaluation because of his efforts in the first 60% of his developmental assignment. After careful review of the record, we conclude that the weight of the evidence fully supports the AJ’s determination that Complainant’s harassment/hostile work environment claim is precluded because Complainant failed to establish that any of the disputed actions were motivated by his disability or by retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s summary judgment 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 2020003663 6 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). 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. 2020003663 7 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 November 15, 2021 Date