[Redacted], Wyatt W., 1 Complainant,v.Dan Brouillette, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Jan 5, 2021

Appeal No. 2019005950 (E.E.O.C. Jan. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wyatt W.,1 Complainant, v. Dan Brouillette, Secretary, Department of Energy, Agency. Appeal No. 2019005950 Hearing No. 490-2017-00056X Agency No. 16-0110-AL DECISION On August 26, 2019, 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 July 24, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Agent/Nuclear Materials Courier, NV-2, at the Agency’s National Nuclear Security Administration, Office of Secure Transportation (OST) in Oak Ridge, Tennessee.2 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. 2 Complainant was employed with the Agency as an Agent since February 2006, and, in January 2011, was promoted to Senior Agent. 2019005950 2 On June 21, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (10% disabled veteran - right knee reconstruction) and age (45) when: 1. about March 30, 2016, the Acting Associate Deputy Administrator (S1) subjected Complainant to the new Physical Readiness Test (PRT), which did not have a sliding scale for age, required physical agility that put a strain on Complainant’s right knee, and changed the conditions of Complainant’s employment; and 2. about March 30, 2016, while performing the PRT, Complainant sustained physical injury (torn right meniscus) and was suspended from Nuclear Explosive Duties (NED), which drastically reduced his pay and could have resulted in termination.3 The Agency accepted Complainant’s complaint for EEO investigation. During the investigation into his complaint, Complainant stated that he had right knee surgery in August 1999, reached maximum medical improvement and was honorably discharged from the military in June 2000, and the knee repair limited his running speed and agility. Complainant stated, on March 30, 2016, he injured himself during the PRT and that injury required surgery in July 2016, from which he is recovering. Complainant stated that he filed a workers’ compensation claim based on his March 30 injury and was on continuation of pay and then reduced pay through the Department of Labor. Complainant stated that he spent 85% of his work time driving or accompanying nuclear materials long distances to various locations. In addition, he spent 15% of his time performing various trainings, such as firearms, law enforcement, medical, driving, and military-style. Complainant stated that he was physically able to perform the essential functions of his position and that the implementation of the PRT requirement was discriminatory. Complainant stated that S1 implemented a new Physical Fitness Test Policy, which includes the PRT, on December 31, 2015. Complainant stated that the PRT consists of six elements - 22” vertical jump, an Illinois agility run in 18 seconds, 35 sit-ups, a 300-meter run in 61 seconds, 35 pushups, and a 1.5 mile run in 13:48 minutes. Complainant stated that the test is not adjusted for age or disability. Complainant stated that he was hired under the Physical Performance Qualification (PPQ) requirements,4 which were more physically tailored to the Courier job requirements. 3 As of August 6, 2016, Complainant is no longer employed with the Agency and, on August 8, 2016, he began working at a different federal Agency in a law enforcement position. Complainant stated that he had to uproot his family and accept lower wages. 4 The record shows that the PPQ consisted of a one mile run and a 40-yard dash. 2019005950 3 He stated that the Agency lessened the new PRT standards on August 22, 2016, after he left the Agency. Complainant stated that it is well known that physical performance and ability decrease with age and that physical injuries increase with age. Complainant stated that he injured himself during the PRT agility run and could not finish the 1.5 mile run, so he failed the PRT. Complainant stated, subsequently, the Agency administratively suspended him for failing the PRT. Complainant stated that the Agency announced the PRT in April 2013, but gave a two-year grace period to pass. Complainant acknowledged that he failed the PRT in 2014 and 2015, but stated that he was able to retain his position by passing the PPQ instead those years. Complainant stated that he should not have been subjected to any agility testing because he was performing his job in “an exemplary manner.” The OST Acting Associate Deputy Administrator, S1, stated that Nuclear Materials Couriers transport and protect nuclear weapons and materials from hostile forces. He stated the PRT is a two-step testing process. He stated that the first portion consists of six timed physical elements. He stated that if the first portion is not passed, the employee is offered remediation and a second opportunity to pass the PRT. S1 stated if the employee does not pass the second PRT they are given a Job Task Simulation Test (JTST) during which the employee wears 50 pounds of equipment while completing two timed obstacle courses. S1 stated that there was a three-year grace period to phase in the PRT from the PPQ. He stated that if an employee failed the PRT between 2013 and January 2016, they could take the PPQ to meet the physical job standard. S1 stated that the PRT and JTST are intended to reflect the minimum qualifications required to perform the Nuclear Materials Courier position and those duties do not differ based on age so there is no sliding age scale for the tests. S1 stated that a government contractor, Fit Force, developed the physical standard requirements based on data attained over several years. S1 stated, following the Spring 2016 PRT testing, data revealed that about 150 agents took the PRT with 10 failing but passing the JTST. S1 stated, after consideration, in July 2016, he lowered the requirements of the PRT test to a 21.5” vertical jump, Illinois agility run in 18.3 seconds, 34 sit ups, a 300-meter run in 61 seconds, 33 pushups, and a 1.5 mile run in 14.27 minutes. S1 stated that he signed the PRT standards in 2015 and then made the aforementioned changes in 2016. S1 stated that if an employee is suspended, the impact is on the duties he is able to perform but does not affect his base pay. S1 added that the potential for fitness changes arose in 2004 when there were concerns about the amount of increased equipment weight (50 pounds) couriers had to wear and, in 2010, the Office of Personnel Management (OPM) completed a Job Task Analysis that is the basis for PRT/JTST. Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing. The assigned AJ granted the Agency’s Motion for Summary Judgment, finding no genuine issues of material fact exist. The AJ stated that Complainant voluntarily resigned his Courier position before completing the JTST portion of the physical standards. 2019005950 4 He stated the Agency worked with OPM and a contractor to develop physical standards that most closely reflect the duties of the Nuclear Materials Courier position. The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for implementing the PRT/JTST. The AJ stated, in Spring 2016, 138 individuals took the PRT and 53 (38%) were age forty or over and 85 (62%) were under age forty. The AJ stated that every employee who took the PRT eventually passed the PRT/JTST requirement, except three (two over 40 and one under 40). Citing a similar EEOC case, Orval T. v. Dep’t of Energy, EEOC Appeal No. 0120161688 (September 14, 2018), the AJ found that while Complainant asserted he was entitled to preferential treatment in physical demands testing due to his age, no authority supports his assertion. Further, the AJ found that Complainant’s claim (2) falls under the Office of Workers’ Compensation Programs (OWCP) process as Complainant filed an OWCP claim due to his March 30, 2016 injury. The AJ stated that OWCP matters do not fall within EEOC jurisdiction. The AJ found that Complainant failed to establish pretext. Subsequently, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed. 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”). 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Disparate Treatment 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 Complainant to prevail, he 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 2019005950 5 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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, non-discriminatory reason for the 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). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on disability or age, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Since 2006, Complainant was an OST Nuclear Materials Courier. He provided safe and secure transport for nuclear materials long distances. Complainant is a 10% disabled veteran following a 1999 right knee reconstruction and was 45 during the relevant period. About 2013, the Agency was phasing out its PPQ physical requirements test (consisting of a one mile run and 40 yard dash) and phasing in its new PRT testing (consisting of a 22” vertical jump, an Illinois agility run in 18 seconds, 35 sit-ups, a 300-meter run in 61 seconds, 35 pushups, and a 1.5 mile run in 13:48 minutes). Complainant failed the PRT in 2014 and 2015, but was able to retain his Nuclear Materials Courier duties by successfully completing the PPQ test. In Spring 2016, Complainant took the PRT test, during which he sustained a torn right meniscus injury, and was unable to complete all six elements of the PRT. Due to this failure of the PRT test, Complainant was administratively suspended from Nuclear Explosive Duties. Complainant was on OWCP benefits and then left Agency employment in August 2016. He began a job at another law enforcement agency on August 8, 2016. Complainant stated that there should be an adjustment scale for age and disability for the PRT and that the former test, PPQ, appropriately gauged what was physically required for the Nuclear Materials Courier position. The Agency stated that there is a two-step physical standards process for Couriers. The Agency stated that the Courier position originally required the PPQ testing5 but, in 2004, management concerns developed regarding the 50 pounds of equipment the Couriers wore. 5 The PPQ testing also did not have an age-graduated scale. 2019005950 6 The Agency stated that it worked with OPM and a government fitness contractor to develop physical standards that accurately reflected the minimum qualifications required to perform the Courier position. The Agency stated that there is no variance in Courier duties based on age so there is no graduated scale based on age for the testing. The Agency stated the PRT consists of six timed physical elements. If an employee does not pass the six elements, management offers the employee remedial training and a second opportunity to pass the PRT. The Agency established that a Job Task Simulation Test (JTST) is given if an employee does not pass the second PRT. The Agency stated that JTST consists of an employee wearing 50 pounds of equipment while completing two timed obstacle courses. There was a three-year grace period to phase in the PRT from the PPQ. The Agency stated, following the Spring 2016 PRT testing, data revealed that about 150 agents took the PRT with 10 failing but later passing the JTST. The Agency stated, in July 2016, it lowered the PRT requirements to a 21.5” vertical jump, Illinois agility run in 18.3 seconds, 34 sit ups, a 300-meter run in 61 seconds, 33 pushups, and a 1.5 mile run in 14.27 minutes. The Agency stated that occupational standards are based on the position a person holds. It noted that if an employee is suspended, the impact is on the duties he is able to perform but does not affect his base pay. The record shows Complainant was injured during Spring 2016 PRT testing, he went on administrative suspension and received OWCP benefits, but he did not complete the JTST testing the Agency offers after PRT is failed for the second time. Complainant left Agency employment in August 2016. Based on the circumstances herein, we agree that Complainant failed to show that the Agency’s actions were based on discriminatory motives. See Orval T. v. Dep’t of Energy, EEOC Appeal No. 0120161688 (September 14, 2018). CONCLUSION After thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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. 2019005950 7 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. 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. 2019005950 8 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 5, 2021 Date