[Redacted], Taylor G., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022001443 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Taylor G.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022001443 Agency No. 4D1C2000421F21 DECISION On January 11, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 30, 2021 final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND Complainant started his employment with the Agency on August 25, 2019, as a Supply Technician at Ellsworth Air Force Base in South Dakota. He was serving in a probationary period. On January 28, 2020, Complainant filed a formal complaint. Complainant claimed that the Agency discriminated against him based on disability, age (DOB: 1956), and in reprisal for prior protected EEO activity when he was denied reasonable accommodation for his disabilities, was harassed by the Lodging Manager and Operations Manager and, on November 27, 2019, was terminated from his position during his probationary period. 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. 2022001443 2 After an investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request hearing before an EEOC Administrative Judge. However. Complainant did not request a hearing or a final agency decision. Thereafter, the Agency issued a final decision on December 30, 2021, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or unlawful retaliation was established. The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation Under the Commission’s regulations, an agency is required to make 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. Complainant stated that he has been diagnosed with Diabetes, as well as Dysthmia (a mild but long-term form of depression) and Post Traumatic Stress Disorder (PTSD), all of which he contends are permanent. We will assume for purposes of analysis only, without so deciding, that Complainant is an individual with a disability. While Complainant claimed that his supervisors were aware of his impairments, the Hotel Operations Manager (“S1”), also Complainant’s first-level supervisor (born 1961), and the Lodging Manager (“S2”), also Complainant’s second-level supervisor (born 1964), stated that they were not aware of any impairment which limited Complainant’s ability to do his job during the relevant period. Both supervisors asserted that Complainant never provided them with any medical documentation and did not make a request for a reasonable accommodation. The record does reflects, however, that Complainant requested certain equipment - a stair dolly, steel boots, a back brace, and lifting straps - all of which were provided by management. In sum, based on the undisputed evidence of record, the Agency determined that the Agency management did not deny Complainant a requested reasonable accommodation or otherwise failed to accommodate Complainant within his documented medical restrictions pursuant to its obligations under the Rehabilitation Act. Disparate Treatment: Termination During Probationary Period A claim of disparate treatment is examined under the three-part analysis first in enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 2022001443 3 The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of prohibited reason. See St. Mary’s Honor Center v. Hicks, 5009 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 19900; Peterson v. Department of Health and Human Services, EEOC Request No. 059001599 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the termination of Complainant’s employment. Both S1 and S2 noted that Complainant had demonstrated an ongoing lack of confidence, accountability, and willingness to take on more responsibility, and provided specific examples of his deficiencies. For instance, on November 7, 2019, S1 stated that Complainant was verbally counseled on his job knowledge, job retainability, job understanding, declining work performance, not following procedures and policies, attitude towards his supervisors, and lack of respect for authority. On November 15, 2019, S1 instructed Complainant to move 18 supply boxes to a third-floor storage room, which took Complainant 55 minutes. However, management officials determined that such a task should have been accomplished within 30 minutes. Furthermore, S1 stated that on November 21, 2019, Complainant failed to clean the sidewalk and driveway, which caused a safety violation. The record contains a copy of Complainant’s Separation during Probationary Period dated November 22, 2019. Therein, S1 placed Complainant on notice that his work performance has declined and had shown no improvement despite the guidance he provided to Complainant. In a follow-up meeting on November 25, 2019, S1 informed him that his employment with the Air Force Inns would be terminated effective November 27, 2019. After careful review of the evidence of record, we conclude Complainant failed to prove, by a preponderance of the evidence, that the Agency’s articulated reasons for terminating his employment during his probationary period was not pretext masking an unlawful discriminatory or retaliatory motivation. 2022001443 4 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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). 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. 2022001443 5 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 January 26, 2023 Date