Vaughn L.,1 Complainant,v.Ryan Zinke, Secretary, Department of the Interior (Bureau of Reclamation), Agency.

Equal Employment Opportunity Commission

Mar 29, 2017

0120150306 (E.E.O.C. Mar. 29, 2017)

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

Vaughn L.,1
Complainant,

v.

Ryan Zinke,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.

Appeal No. 0120150306

Hearing No. 551-2014-00008X

Agency No. DOI-BOR-12-0524

DECISION

The Commission accepts Complainant’s appeal from the Agency’s September 24, 2014, 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. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Journeyman
Electrician at the Agency’s Grand Coulee Power Office in Grand Coulee, Washington. On
May 24, 2010, Complainant sustained an on-the-job injury to his right knee. Based on
restrictions set by his doctor, Complainant’s supervisor (S1) provided Complainant a modified
limited duty assignment through the Office of Workers’ Compensation Programs (OWCP) in
the Left Powerhouse/Pumping Generation Plant.

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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Complainant’s doctor periodically updated Complainant’s CA-17 Duty Status Report verifying
Complainant’s restrictions. On November 11, 2011, Complainant’s doctor completed a new
CA-17 placing Complainant on additional permanent restrictions. Based on these restrictions,
Complainant could no longer perform the full duties of a Journeyman Electrician. The Agency
began working with OWCP to determine if there was another vacant, full-time position at the
Grand Coulee Power Office within Complainant’s restrictions for which he was qualified.

On February 8, 2012, the Agency offered Complainant a Supply Technician position with
duties within his restrictions. The Agency informed Complainant that the position would pay
less than the Journeyman Electrician position; however, OWCP would compensate him for the
salary difference. Complainant accepted the position on March 9, 2012. Complainant noted in
his written acceptance that he felt compelled to accept the position, that he believed he could
perform the duties of the Electrician position, and that the Agency perceived him as disabled.
The Agency responded to Complainant stating that it based its determination that he could not
perform the essential functions of the Electrician position on the medical information and
restrictions provided by his doctor. The Agency invited Complainant to provide additional
information regarding any specific accommodation that would enable him to perform the
essential functions of the Journeyman Electrician position. Complainant did not provide any
additional information.

On September 28, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of disability, age (51), and in reprisal for prior
protected EEO activity when, on March 9, 2012, the Agency perceived him as disabled and
reassigned him from an Electrician to a Supply Technician position in which he would lose
significant pay and benefits.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ).2 Complainant timely requested a
hearing. The AJ assigned to the case granted summary judgment in favor of the Agency and
issued a decision without a hearing on August 13, 2014.

In the decision, the AJ initially assumed arguendo that Complainant established a prima facie
case of discrimination on the alleged bases and found that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the Agency stated that it offered
Complainant the position of Supply Technician in accordance with Complainant’s medical
restrictions as imposed by his doctor on November 11, 2011. Complainant engaged in the
OWCP process after being injured and having medical restrictions placed upon him by his
doctor. The Agency cooperated with OWCP’s suggested plan of transferring Complainant to a
position which allowed him to perform his duties without working outside of his restrictions.
The AJ concluded that Complainant failed to show that the Agency’s reasons were pretextual.

2 The Agency initially dismissed the complaint for untimely EEO Counselor contact. The
Agency subsequently rescinded the procedural dismissal.
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As a result, the AJ found that Complainant had not been subjected to discrimination or reprisal
as alleged. The Agency subsequently issued a final order fully implementing the AJ’s
decision. The instant appeal followed. Complainant filed the instant appeal without submitting
any arguments or contentions in support.

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.

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). Complainant must initially 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 burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Assuming arguendo that Complainant established a prima facie
case of discrimination and reprisal, the Commission finds that Complainant failed to present
evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. In
particular, Complainant’s second-level supervisor (S2) stated that Complainant suffered an on-
the-job injury to his right knee on May 24, 2010. ROI, at 124. Complainant was provided
work within his restrictions. Id. On November 11, 2011, Complainant submitted an updated
CA-17 form with new permanent restrictions. Id. at 125. Complainant’s restrictions included
no kneeling, no lifting over 25 pounds, no more than 15 minutes squatting or climbing per
hour, no more than four hours sitting and six hours walking. Id. at 168. Complainant’s
updated restrictions prevented him from performing the essential functions of the Electrician
position. Id. at 126.

The Agency identified and offered Complainant a full-time Supply Technician position with
duties within his permanent restrictions. ROI, at 125, 153-55. The Agency informed
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Complainant that the Supply Technician position had a lower salary, but that OWCP would pay
him the difference. Id. at 158. Complainant accepted the assignment, but noted that he
believed he was compelled to accept it and that he could perform the essential duties of the
Electrician position. Id. at 156. The Agency responded to Complainant requesting that he
submit information regarding any accommodations that could assist him in performing the
duties of the Electrician position. Id. at 154. Complainant did not respond to the request.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant’s protected classes were a factor in any of the Agency’s actions.
Complainant’s subjective belief that the management actions at issue were the result of
discrimination or reprisal is insufficient to prove pretext. At all times, the ultimate burden
remains with Complainant to demonstrate by a preponderance of the evidence that the
Agency’s reasons were not the real reasons and that the Agency acted on the basis of
discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that he was subjected to discrimination
or reprisal as alleged.

Denial of Reasonable Accommodation

To the extent that Complainant claims that the Agency failed to reasonably accommodate him,
the Commission notes that that under the Commission’s regulations, an agency is required to
make reasonable accommodation to the known physical and mental limitations of a qualified
individual with a disability unless the agency can show that accommodation would cause an
undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). The Commission will assume without
deciding that Complainant is a qualified individual with a disability.

Here, the undisputed record shows that the Agency provided Complainant work within his
restrictions following his on-the-job injury. Complainant’s doctor placed Complainant on
stricter permanent restrictions in November 2011, including no lifting more than 20 pounds; no
standing or walking for 15 minutes per hour; and no kneeling, bending/stooping, or climbing.
ROI, at 168. Consequently, Complainant could no longer perform the essential functions of
the Electrician position. Id. at 168, 207. The Agency accommodated Complainant by offering
him a full-time Supply Technician position with duties within his restrictions. Id. at 156. The
record reveals that Complainant initially raised objections to the Agency’s reassignment.
While Complainant is entitled to an effective reasonable accommodation, he is not entitled to
the accommodation of his choice. Lynette B. v. Dep't. of Justice, EEOC Appeal No.
0720140010 (Dec. 3, 2015). Complainant has not shown that the accommodation offered and
provided by the Agency was not effective.

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The record further shows that the Agency provided Complainant an opportunity to submit any
additional information regarding an accommodation that would permit him to perform
Electrician duties. An agency may request additional information when presented with a
request for reasonable accommodation to evaluate a complainant’s proposed accommodation in
comparison to his current medical needs to determine what accommodation would best serve
the needs of the agency and complainant. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No.
915.002, at question 6 (Oct. 17, 2002). Moreover, when an individual’s disability or need for
reasonable accommodation is not obvious, and he fails to provide reasonable documentation
requested by the employer, the employer will not be held liable for failure to provide the
requested accommodation. Id. Here, the record shows that Complainant failed to respond to
the Agency’s request for documentation to assist in addressing his condition. Therefore, the
Commission finds that Complainant has not established that the Agency failed to provide him
with a reasonable accommodation.

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 order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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
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received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. 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.
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

March 29, 2017
Date