Roland T.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0120172340 (E.E.O.C. Nov. 30, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Roland T.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 0120172340

Hearing No. 550-2016-00326X

Agency No. DLAN-16-0026

DECISION

On June 22, 2017, 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
May 18, 2017, final order concerning his equal employment opportunity (EEO) complaint alleging
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. Our review is de novo. For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Police
Officer at the Agency’s work facility in San Joaquin, California.

On January 20, 2016, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him and subjected him to harassment on the bases of his sex (male), disability
(neck/back), and age (46) 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.
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1. Between January 2013 and November 2015, management declined Complainant’s
requests to reissue his police lieutenant badges and credentials;

2. On October 13, 2015, Complainant was issued a fitness for duty letter instructing him
to report to the Agency physician for a physical evaluation;

3. In December 2011 and March 2012, management did not file or improperly filed his
workers’ compensation claims;

4. On February 2, 2012, management denied Complainant’s request for light duty work;

5. In February 2012, Complainant was approved for advanced sick leave, but only
received the advanced sick leave for one pay period which was less than the approved
amount; and

6. On February 1, 2012, Complainant was not paid for the hours he worked when he
reported to work as ordered by management. Complainant stated that management sent
him home on February 1, 2012, when it learned that Complainant was not cleared for
light duty work by his physician.

The Agency accepted claims (1) and (2) for investigation. The Agency dismissed claims (3) – (6)
pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. The
Agency determined that Complainant initiated contact with an EEO Counselor on October 21,
2015, which was more than 45 days after the alleged incidents referenced in claims (3) – (6).

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. On January 10, 2017, the AJ assigned to this matter
issued a Notice and Order indicating his intention to issue a summary judgment decision because
it appeared that no genuine dispute of material fact or questions of credibility existed in this matter
and the Agency was entitled to judgment as a matter of law. Complainant objected in his response
and the Agency also filed a response. The AJ issued a summary judgment decision without a
hearing on April 11, 2017.

The AJ found that no discrimination occurred. The AJ observed that in accordance with Agency
policies, Complainant was relieved of his police badge and credentials after he suffered physical
injuries in 2011, which prevented him from performing the essential functions of his position. The
AJ noted that with the approval of Police Chief 1, Complainant was placed on extended medical
leave, and in accordance with Agency policy turned in his police badges and credentials. The AJ
stated that Police Chief 2 assumed that position in May 2014. At that time, Complainant was
performing light duty work two days a week performing administrative and non-uniformed police
functions up to sixteen hours each week.
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Pursuant to Agency policy, Complainant’s badges and credentials were not restored because he
was not performing all the essential functions of police duties.

Police Chief 2 explained that when police officers were determined to be unable to perform their
duties, Agency policy required them to submit to an examination to determine their fitness to meet
the requirements of the police officer position before returning to police officer duty. In addition,
all officers were required to pass an entry and annual fitness test. The AJ noted that Complainant
had not been examined for fitness for some time. In light of Complainant’s desire to return to duty
as a properly credentialed police officer, Complainant was therefore required to submit to a fitness
for duty examination. The AJ observed that by a report dated November 16, 2015, Complainant’s
physician determined that Complainant would never be able to return to his policy officer position.

The AJ determined that Agency officials presented a well-established process for restoring badges
and credentials to police officers who had been placed on extended leave for military service or
medical reasons, and for requiring that an employee determined to have been unable to perform
the essential functions of their police officer position submit to a fitness for duty examination
before being reinstated to a regular police officer position.

The AJ noted that Complainant failed to offer evidence that any similarly situated employees
outside his protected groups were treated differently regarding credentialing and fitness decisions
in similar circumstances. The AJ found that Complainant failed to establish that the Agency’s
explanation for not granting Complainant’s request for his badges and credentials and requiring
him to undergo a fitness for duty examination were not true or were a pretext masking a
discriminatory motive.

With regard to Complainant’s harassment claim, the AJ reasoned that the matters alleged by
Complainant appear to be common workplace occurrences dealing with fitness for duty and
credentialing questions and medically imposed work restrictions and limitations. The AJ
concluded that there was no evidence indicating they were sufficiently severe or pervasive to
establish a hostile work environment or that the actions were taken based on Complainant’s
protected classes. As a result, the AJ found that Complainant had not been subjected to
discrimination or a hostile work environment as alleged.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Lieutenant instructed him in July and August 2012, to
turn in his badges and credentials and that they would be returned to him when he returned to duty.
Complainant claims that the discrimination and harassment concerning his badges and credentials
started in July 2012, yet the Agency cited a policy that was allegedly effective November 7, 2014,
but was not signed by the Director until October 30, 2015. Complainant points out that the policy
was signed approximately three weeks before his last fitness for duty was ordered. Complainant
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states that when he returned to modified duty in January 2013, Police Chief 1 called him into his
office and showed the new Lieutenant badges and credentials that had been assigned in his name.
Complainant states that Police Chief 1 did not issue the badges and credentials to him even though
he said he would when Complainant returned to work. Complainant notes that his badges and
credentials were subsequently assigned and issued to a newly promoted police Lieutenant.
Complainant maintains that he had never seen badges reassigned in this manner as he was still in
his position and back at work. Complainant contends that his badges and credentials were not
reissued to him because management planned to get rid of him due to his injuries. According to
Complainant, in May 2014, he received an email from the Captain requesting that he sign a form
that he turned in his badges and credentials. Complainant argues that the badges and credentials
were never reissued to him and this request constituted harassment. Complainant maintains that
management’s failure to file or the misfiling of his workers’ compensation paperwork slowed or
stopped him from getting the treatment and care he needed to enable him to return to work.
Complainant states that in November 2015, he spoke with an officer that was on light duty for an
extended period of time and learned that the officer was still in possession of her badges and
credentials. Accordingly, Complainant requests that the Commission reverse the final order.

In response, the Agency asserts that Complainant has not argued any facts that were not considered
by the AJ. The Agency states that the reasons it provided for the actions taken were a policy that
if a police officer is not performing the police officer duties for any length of time due to any
reason such as medical or work restrictions or military leave, the police credentials and badges are
not given to the officer and a physical examination is required annually. The Agency points out
that Complainant’s physician stated that Complainant is totally disabled from any work. The
Agency requests that the Commission affirm its final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In
rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).

Initially, we note that Complainant did not specifically challenge the Agency’s dismissal of claims
(3) – (6) while the matter was before the AJ. However, Complainant’s rebuttal to the AJ’s notice
of intent to issue a summary judgment decision included arguments regarding his workers’
compensation claim alleged in claim (3), which the AJ rejected.
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In addition, on appeal Complainant again raises the matter in claim (3). We observe that the time
frame in this claim is December 2011 and March 2012. Complainant initiated contact with an
EEO Counselor on October 21, 2015. This contact was after the expiration of the 45-day limitation
period. Complainant has not provided adequate justification for an extension of the limitation
period. Accordingly, we discern no basis to disturb the Agency’s dismissal of claims (3) – (6).
Nonetheless, the Commission will consider the dismissed claims as background evidence in
support of Complainant’s overall hostile work environment claim.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov.
13, 1997). 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
Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of
the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

In the instant case, the Commission finds that the AJ properly granted summary judgment in favor
of the Agency as no material facts remain in dispute. Here, the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. In terms of claim (1), the Agency stated that it declined
to issue Complainant his badges and credentials because he was not performing all of the essential
functions of police duties.

Complainant attempts to establish pretext by arguing that the policy that the Agency allegedly
relied on was not in effect when the Agency initially declined to reissue his badges and credentials.
Complainant further argues that a female police officer who has been on light duty for an extended
amount of time still has her badges and credentials. We are not persuaded by Complainant’s
argument challenging the existence of the relevant Agency policy. The Agency apparently
formalized this policy in 2014, but there is no indication that prior to then the Agency adhered to
a different policy and treated Complainant differently than similarly situated individuals outside
his protected groups when it did not reissue his badges and credentials. As for the female
comparator cited by Complainant, we observe that the Deputy Chief of Police stated that her badge
and credentials were removed and kept in the office safe. Complainant has not submitted any
persuasive evidence that refutes this assertion.
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We find that Complainant has failed to establish that the Agency’s explanation for not reissuing
him his badges and credentials was pretext intended to hide discriminatory motivation.

With regard to claim (2), the Agency stated that it issued Complainant the fitness for duty letter
because when police officers were considered unable to perform their duties, Agency policy
required that they submit to an examination to determine their fitness to meet the requirements of
the police officer position before returning to police duty. The AJ stated that all officers were
required to pass an entry and annual fitness test. An Agency physician determined that, based on
his fitness for duty examination, Complainant was medically unable to perform the essential
functions of his position. Given Complainant’s desire to return to duty as a properly credentialed
police officer, the Agency therefore informed Complainant in October 2015 that he was required
to submit to a fitness for duty examination. We find that the Agency has articulated legitimate,
nondiscriminatory reasons for this requirement. We further find that Complainant has not
presented any persuasive argument or evidence to establish that the Agency’s explanation was
pretext intended to mask discriminatory motivation. 2

Hostile Work Environment

To establish this 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; (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.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a working
environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct,
its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes
with an employee’s work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994).

Upon review of the alleged acts of harassment, we discern no discriminatory motivation on the
part of the Agency. Further, we find that whether considered individually or cumulatively, the
incidents alleged by Complainant were not sufficiently severe or pervasive to constitute a hostile
work environment. Accordingly, we find that Complainant has not established that he was
subjected to discrimination or a hostile work environment as alleged.

2 Additionally, the Commission finds that there was nothing unlawful about the fitness for duty
examination under the Rehabilitation Act as the Agency has established that management ordered
it based upon objective evidence that Complainant may have been unable to perform the essential
functions of his job.
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CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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 30, 2018
Date