[Redacted], Terrence F., 1 Complainant,v.Bill Nelson, Administrator, National Aeronautics and Space Administration (Kennedy Space Center), Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2021001419 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrence F.,1 Complainant, v. Bill Nelson, Administrator, National Aeronautics and Space Administration (Kennedy Space Center), Agency. Appeal No. 2021001419 Agency No. NCN-16-KSC-00007 DECISION On December 22, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 18, 2020 final decision 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. Complainant worked as a Safety and Occupational Health Specialist, GS-0018-12, at the Kennedy Space Center in Florida. On December 23, 2015 (and later amended), Complainant filed a formal EEO complaint in which he alleged the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (residual effects of foot injury, gout, arthritis) and reprisal (prior EEO activity) as evidenced by the following incidents: 1. Since February 2013, the Safety and Occupational Health Manager, his first-line supervisor (S1) and the Institutional Safety and Mission Assurance Division Chief, his second-line supervisor (S2), provided false information regarding Complainant’s disability, which impacted his disability checks; 2. Since July 30, 2013, S1 and S2 denied his request for reasonable accommodation in the form of modified duty; 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. 2021001419 2 3. On an unspecified date in 2014, S1 issued Complainant a performance evaluation of “fully successful” for the May 1, 2013 through April 30, 2014 performance cycle that was lower than the evaluation he had received for the previous rating period; 4. On an unspecified date in 2014, S1 posted Complainant’s 2013-2014 performance appraisal on a bulletin board outside of his office door; 5. On unspecified dates, S1 or S2 made negative comments to Complainant’s potential employers; 6. On unspecified dates, S1 gave Complainant excessive work assignments that were beyond his physical limitations; 7. On an unspecified date in 2014, Complainant was denied a promotion; 8. On an unspecified date in 2014, Complainant was denied a bonus; 9. On unspecified dates in June 2014, S1 included Bible verses at the end of his emails; and 10. On September 30, 2014, he was allegedly forced to resign his position under the Voluntary Early Retirement Authority. Complainant initially filed an appeal with the Merit Systems Protection Board (MSPB) regarding his retirement which he alleged was involuntary. In January 2015, the MSPB dismissed his appeal for lack of jurisdiction. The Agency commenced processing the complaint as a non-mixed case. Following an initial and supplemental investigation of the complaint, the Agency provided Complainant with copies of each investigative report along with notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. On January 3, 2017, Complainant requested a final decision from the Agency. The Agency issued a final decision finding that Complainant failed to establish that he had been subjected to discriminatory harassment. However, in Mac O. v. Nat’l Aeronautics & Space Admin., EEOC Appeal No. 2019000708 (May 21, 2020), the Commission vacated the Agency’s decision after finding that the Agency failed to address Complainant’s reasonable accommodation claim and remanded the matter for a supplemental investigation on that issue. At the conclusion of this second supplemental investigation, the Agency provided Complainant with the opportunity to request a hearing. On August 6, 2020, Complainant again requested a final decision. The Agency subsequently issued a second final decision in which it found that Complainant was not denied reasonable accommodation or subjected to discrimination as alleged. The instant appeal followed. 2021001419 3 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Denial of Reasonable Accommodation Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result in an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dep’t. of Agric., EEOC Appeal No. 0120120400 (December 3, 2015). For purposes of analysis, we will assume that Complainant is a qualified individual with a disability. Complainant injured his foot on June 17, 2013. When he returned to work on July 23, 2013, an Agency physician recommended modified duty limited to walking short distances and using a handicap decal. His primary job duties included assessing contractor safety programs, conducting surveillance of contract laborers, and inspecting facilities. All of these duties were within his medical restrictions. Complainant was able to perform his duties without exceeding his limitation of walking short distances. He was able to sit down as needed in order to avoid prolonged standing. While he alleged that S1 failed to accommodate him by requiring him to do extra work, S1 averred that Complainant had requested overtime in December 2013. Finally, there are no indications that Complainant was denied a specific accommodation. S1 confirmed that Complainant never expressed that he was unable to work, and that Complainant had assured him that he could work without aggravating his injury. Complainant has thus not presented evidence sufficient to establish that he needed an accommodation to perform the essential functions of his position or that such an accommodation was denied when requested. Disparate Treatment - Incident (3) Regarding incident (3), 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, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was given a performance rating of “fully successful” under circumstances that would support an inference of discrimination or reprisal. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). 2021001419 4 The prima facie inquiry may be dispensed with in this case, however, since S1 articulated a legitimate and nondiscriminatory reason for giving Complainant a rating of “fully successful” on his 2013-2014 performance appraisal. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). According to S1, Complainant’s performance warranted a “fully successful” rating because Complainant had performed all of the tasks that were expected of him without doing substantially more than was required. In addition, S1 identified several deficiencies in Complainant’s performance during that cycle, including untimely reviews and producing written reports that required numerous rewrites. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that S1’s explanation is a pretext for discrimination or reprisal. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). While Complainant expressed his disagreement with S1’s rating, he presented neither affidavits, declarations, or unsworn statements nor documents which contradicted or undercut S1’s explanation for his fully successful performance rating, or which caused us to question S1’s veracity as a witness. Since Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge’s assessment of S1’s credibility and can only decide the case on the basis of the evidence presented. Based upon that evidentiary record, we find, as did the Agency, that Complainant has not shown that S1 unlawfully considered Complainant’s disability or previous EEO activity when he issued Complainant a performance rating of “fully successful” for the 2013-2014 performance cycle. Hostile Work Environment To establish a hostile work environment claim, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove his 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2021001419 5 In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that the anti-discrimination statutes are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. For example, as to incident (2), S1 stated that he completed a form entitled, “Supervisor’s Statement” that was included in Complainant’s disability package and answered based on Complainant’s workload at the time, and that he noted on the form that none of Complainant’s responsibilities conflicted with his work restrictions. S1 noted that at the time, Complainant’s job was not sedentary. With regard to incident (4), S1and S2 both denied Complainant’s allegation that his 2013-2014 performance appraisal was posted on his supervisor’s office door. According to S1, it was an assessment and surveillance matrix which enabled management to track the staff’s progress on completing the assessments and surveillances of contractors. Tasks that were on track to be completed by year’s end were coded green while tasks that were not on track for timely completion were coded yellow. Regarding incident (5), S1 averred that he had received only one reference call, that he was asked whether he was Complainant’s supervisor, how Complainant was as an employee, and whether he would rehire Complainant. S1 told the caller that Complainant was a hard worker who took his assignments seriously but that he needed to improve his ability to document and write reports, and that he would rehire Complainant 6 out of 10 times. In addition, S1 averred that there was no conversation regarding Complainant having issues or wanting to retire. With respect to (6), Complainant presented no evidence supporting his assertion that S1 gave him excessive work assignments. Complainant admitted that his workload was consistent with the workload he was given prior to his on-the-job injury. Moreover, Complainant requested approval for work beyond his regular 40-hour schedule in December 2013. As to incidents (7) and (8), S1 and S2 averred that Complainant did not get a promotion because there were no openings available, and if there were, Complainant would have been entitled to compete for them the same as everyone else. They also stated that Complainant did not receive a bonus for the 2013-2014 performance cycle because he was rated “fully successful” and bonuses were reserved for employees who received ratings of “accomplished” or “distinguished.” Regarding incident (9), S1 denied that he had placed a Bible verse at the end of the email explaining his decision to rate Complainant as “fully successful” for the 2013-2014 fiscal year. S1 affirmed that had included a Bible verse in his email signature for several years. 2021001419 6 On appeal, Complainant merely reiterates his allegations. He has not presented any documentary or testimonial evidence that tends to establish the existence of one or more of the indicators of discriminatory or retaliatory animus, that contradicts the explanations provided by S1 or S2, or that casts doubt upon the truthfulness of their statements. We therefore find that Complainant failed to prove that he was subjected to a hostile work environment because of his disability or previous protected EEO activity. Constructive Retirement The central question in a constructive discharge/retirement claim is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). After careful consideration, viewing all of the circumstances presented here, we conclude that a finding of constructive discharge is precluded by our findings that Complainant was not subjected to discrimination or a hostile work environment by any Agency official. The record conclusively establishes that Complainant resigned under the Voluntary Early Retirement Authority and that he had done so voluntarily. He has not shown that any of the incidents in question created working conditions so objectively intolerable that an individual in his situation would feel compelled to resign. Indeed, Complainant failed to present any evidence tying his retirement to any of those incidents or to a discriminatory or retaliatory motive on the part of S1 or S2. In particular, we note that Complainant had attempted to take voluntary early retirement in October 2012, well before the matters at issue arose. Complainant was not eligible for early retirement at that time and would not be eligible until February 2014. Therefore, we find that Complainant has not established that he was constructively discharged/retired. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2021001419 7 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. 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). 2021001419 8 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 November 22, 2021 Date