[Redacted], Van P., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Aug 10, 2021

Appeal No. 2021000169 (E.E.O.C. Aug. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Van P.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 2021000169 Hearing No. 570-2019-00947X Agency No. USMS-2014-00495 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 8, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Deputy U.S. Marshal Candidate, GL-0082- 07, and he was assigned to the Agency’s Training Center located in Glynco, Georgia. On May 9, 2014, Complainant filed a formal EEO complaint alleging the Agency discriminated against him based on disability when on April 4, 2014, he was terminated from his position during his probationary period because he failed to complete the Basic Deputy U.S. Marshals Training Program after he injured his eye during his training. 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. 2021000169 2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On February 8, 2016, the AJ dismissed Complainant’s hearing request because Complainant did not file his hearing request with the EEOC as required by 29 C.F.R. § 1614.108(h) and remanded the complaint to the Agency for a final decision. On September 20, 2016, the Agency issued a final decision finding no discrimination. However, Complainant appealed and this Commission determined that Complainant had timely filed the hearing request with the Agency, which promptly forwarded the request to the appropriate hearings unit. Therefore, the Commission vacated the Agency’s final decision and remanded the complaint to the Washington Field Office Hearings Unit for further processing. See Van P. v. Dep’t of Justice, EEOC Appeal No. 0120170243 (Mar. 15, 2019). On remand, the matter was adjudicated by an EEOC AJ. On June 5, 2020, the Agency filed a motion for summary judgement. Complainant did not respond. On July 29, 2020, the AJ issued a decision by summary judgment in favor of the Agency. On September 8, 2020, the Agency issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. Complainant did not submit any statements or briefs on appeal. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. 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. 2021000169 3 Complainant does not assert, on appeal, any facts that are in dispute, nor does Complainant address the merits of the AJ’s decision on appeal. For the reasons discussed below, we find that a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-part analysis first 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). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 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 the agency has articulated a 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, 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). Complainant stated that on July 26, 2013, he sustained a right eye injury (corneal ulcer) during Basic Deputy U.S. Marshall training. Complainant explained that for the first two weeks of his injury, he could not see out of his right eye. Complainant indicated that the injury prevented him from completing basic training. We presume for purposes of analysis only, and without so finding, that due to his eye condition Complainant was an individual with a disability. Here, we agree with the AJ’s determination that Agency management officials articulated legitimate non-discriminatory reasons for terminating Complainant’s employment. The record reflects that Complainant was hired as a Deputy U.S. Marshall Candidate and he was required to complete a two-part comprehensive training program. The record further reflects that failure to complete the training program would result in a dismissal from training, a return to another division, or a referral to human resources. In instances where a Deputy U.S. Marshall Candidate sustains an injury during training that has an impact upon the ability to complete the training, as is the case here, the candidate may be considered for a subsequent training class after receiving medical clearance. In this instance, the Agency sought to reassign Complainant to another training class after his eye injury had healed. 2021000169 4 However, there were no training classes available to assign Complainant because of budget restraints due to sequestration and a government shutdown. Because no training classes were available, Complainant could not complete the basic training requirement, and his employment was terminated. A copy of Complainant’s April 3, 2014 termination letter acknowledges that Complainant sustained an injury that precluded him from completing the Basic Deputy US Marshals Training Program. The letter also states that Complainant was medically cleared for full duty in September 2013. The Agency, however, did not hold any classes in fiscal year 2013 and the Agency did not receive a budget in October 2013 for the new 2014 fiscal year that would have funded the training classes. Consequently, the letter explained that there were no training classes scheduled for the first part of fiscal year 2014, and because Complainant had not completed this required training, he was not allowed to perform the duties of a Deputy U.S. Marshall, and the Agency terminated his employment, effective April 4, 2014. We also note that once the Agency received funding in May 2014, for the purposes of training classes, Complainant was assigned to the first available class. We conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s disability. While Complainant’s eye condition clearly prevented him from completing the required training course, the weight of the evidence shows that financial constraints on the Agency beyond its control resulted in its inability to assign Complainant to another training session as soon as his injury was healed. Without the required training, Complainant was not qualified to continue in his position and was terminated. Once these financial constraints were lifted, Complainant was rehired and allowed to continue his training. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order implementing the AJ’s finding of 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. 2021000169 5 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. 2021000169 6 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 August 10, 2021 Date