Agency.

Equal Employment Opportunity Commission

Aug 4, 2020

2019000741 (E.E.O.C. Aug. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Orlando O.,1 Grievant, v. Chad Wolf, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2019000741 Agency No. HS-CBP-02707-2015 DECISION The Grievant 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 September 26, 2018, final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND The record indicates that the Grievant worked as a Custom and Border Technician (CBT) at the Agency’s Del Rio Port of Entry in Del Rio, Texas. On January 15, 2015, the Grievant initiated contact with an EEO counselor. On April 28, 2015, he filed a grievance under the Agency’s negotiated grievance procedure, which allows for filing discrimination allegations. He alleged discrimination and harassment based on national origin (Mexican American) and disability (knee replacement). On June 2, 2015, the Grievant’s 13 allegations were dismissed by the Agency on the grounds of untimely EEO counselor contact and other grounds. Upon appeal to the Commission, the Agency’s dismissals were reversed regarding the following claims: 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. 2019000741 2 a. Since 2010, he has not been permitted to work overtime in his reassigned position of CBP (Customs Border and Protection) Technician. b. In June 2010, he made additional inquiries about disabled parking spaces, but no spaces were added. c. On November 4, 2010, he submitted medical documentation to management to request a disabled parking space, but his request was denied. d. On May 17, 2011, he requested the Port Director to speak with employees about using disabled veterans’ license plates and the use of disabled parking spaces at the Port, but no action was taken. e. On December 4, 2011 and December 8, 2011, he was requested to provide additional medical documentation to justify his request for a designated parking space. f. In March 2012, he was approved for an accommodation to park anywhere near the disabled parking space for a time period of 15 minutes, prior to a shift change; however, this accommodation was not sufficient to his needs. g. From August through October 2014, he requested a designated disabled parking space and provided additional medical information but was denied a space. The Agency was directed to investigate and process these matters in accordance with 29 C.F.R. § 1614.108.2 In its Step III decision, the Agency found, in pertinent part, that with respect to claim (a), the Grievant was given overtime work that was commensurate with his medical restrictions when it was available. The Agency noted that the Grievant had permanent medical restrictions that limited the amount of time that he could perform various physical activities. With respect to his claim that he was denied reasonable accommodation regarding his request for a designated parking spot, claims (b) - (g), the Agency noted that Complainant did not establish a medical need for the requested accommodation. Furthermore, the Agency stated that during the period it offered to add another disabled parking space near the building and, if needed, to have an employee assist the Grievant with a wheelchair to and from the parking lot. According to the Agency, the Grievant declined both offers. On appeal, the Grievant argues that: (1) the step II grievance official indicated that he had not been removed from his prior Custom and Border Protection Officer (CBPO) position; therefore, the Commission should disregard everything that has taken place, including its prior decisions, and restore him to his CBPO position; (2) the Commission should reconsider its affirmance of the issues that the Agency dismissed in its June 2, 2015, decision; and (3) the Agency discriminated against him by not providing him access to a disability parking space. 2 EEOC Appeal No. 0120152324 (Aug. 15, 2017), request for reconsideration denied, EEOC Request No. 0520170603 (Jan. 9, 2018). 2019000741 3 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.401(d) provides that a grievant may appeal to the Commission a final decision of the Agency, the Arbitrator, or the FLRA on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised. We find that the Commission has jurisdiction over Grievant’s appeal as it concerns the Agency’s final decision finding that he was not subjected to discrimination when the Agency denied his requests for overtime and reasonable accommodation. To prevail in a disparate treatment claim absent direct evidence of discrimination, the Grievant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). The Grievant carries the initial burden of establishing 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. Co. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the Grievant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet his ultimate burden of proving that the Agency’s actions are discriminatory, the Grievant needs to demonstrate such “weaknesses, implausibility, 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.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, the Grievant established a prima facie case of discrimination based on national origin and disability, we find that the Agency provided a legitimate, nondiscriminatory reason for its overtime assignments concerning the Grievant. The assignments were made based on his medical restrictions. The Grievant does not dispute the Agency’s assertion here. Consequently, we find no persuasive evidence of pretext. Under the Commission’s regulations, a federal agency may not discriminate against a qualified individual based on disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). An undue hardship is a significant difficulty or expense, in light of the nature and cost of the accommodation, the financial resources of the facility and agency, the agency’s operations, and the effect of the accommodation on the operations of the facility. Id. § 1630.2(p). 2019000741 4 To establish that he was denied a reasonable accommodation, the Grievant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See, e.g., Bill A. v. Dep’t of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Assuming, arguendo, the Grievant is a qualified individual with a disability, we do not find that he was denied a reasonable accommodation here. Claims b - g should be viewed as one claim of an alleged denial of a reasonable accommodation. The record indicates that although the Grievant requested permission to use a disabled parking spot in March 2010, he did not request access as a reasonable accommodation until October 2010. Prior to that time, the medical documentation available to the Agency indicated that the Grievant, who had his right knee totally replaced in April 2008, could stand and walk for at least two hours at a time. The Grievant was told by A1, the Port Director, there were “no handicapped employees working at the port.” The Grievant stated that the space was eventually painted over which left two parking spaces far away from the building. A November 2010 letter from his doctor, submitted as part of his reasonable accommodation request, indicated that he “[r]ecommended to [the Grievant] that he seek[s] access to handicap parking. It was my understanding that the non-handicap parking was quite a distance from his place of work. The purpose of a handicap sticker would be to decrease the distance he has to walk to and from work on a daily basis.” On October 27, 2010, A1 sent an email to all employees displaying a handicapped placard or DV [Disabled Veteran] license plate,” indicating that because a reasonable accommodation request had been submitted no one but the requesting employee could park in the disabled parking spot located next to the rear entrance of the administration building for a period of 30 days. In its January 10, 2011, response to the Grievant, the Agency noted that his medical information, provided by his own physicians, indicated that his medical condition was not “debilitating to warrant a special parking space,” and that the Del Rio Port of Entry had enough disability parking spaces to meet his needs. According to the record, there was an employee parking lot with 50 spaces and 3 disabled spaces that was about 100 - 150 feet from the Port. There was also public parking with about 10 spaces and 1 disabled parking spot in front of the Port; and the Canine unit had spaces reserved for government vehicles with 1 designated parking spot. The area where the Grievant wanted to park was in the Administration parking area. This location had 6 spaces for law enforcement vehicles and 1 reserved for disabled, van accessible. On January 11, 2011, A1 notified all employees that the disabled parking spot “[l]ocated by the rear door to the admin building is now open to all employee’s displaying a valid handicapped placard or DV license plate.” A2, the then Assistant Port Director, stated that although the Grievant’s request was denied he was told that the two designated disabled parking spaces adjacent to the Administration building, which were near the rear entrance, were available to him on a first 2019000741 5 come, first serve basis. A2 also stated that A1 offered to allow the Grievant, if the disabled spots were occupied, to park near the Administration Building, until a spot became available. A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) (“the word ‘accommodation’. . . conveys the need for effectiveness”). That is, a reasonable accommodation should provide the individual with a disability with “an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment, as are available to the average similarly situated employee without a disability.” 29 C.F.R. pt. 6130 app. § 1630.9. If more than one accommodation will enable an individual to perform the essential functions of his or her position, “the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations and may choose the less expensive accommodation or the accommodation that is easier for it to provide.” Id.; see Goodman v. U.S. Postal Serv., EEOC Appeal No. 0120044371 (May 2, 2007). “The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability.” 29 C.F.R. pt. 1630 app. § 1630.9. We find that the Grievant provided no persuasive medical evidence substantiating his need for a parking spot reserved solely and specifically for his use only. His doctor merely requested that he have access to disability parking. The area in the rear of the Administration Building was the location the Grievant preferred, but there was no evidence that the other locations would not have been just as effective given that he could walk up to two hours at a time. Moreover, the Agency indicated that there was also the option of an employee assisting the Grievant with a wheelchair to and from the parking lot if needed. The Grievant does not deny that this option was presented to him; on appeal, he merely stated that he did not recall. We find that the Grievant did not establish that he was denied a reasonable accommodation. Regarding the Grievant’s hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that his claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination above that the Grievant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). With respect to the matters raised on appeal by the Grievant, we find that although the Step II deciding official clearly erred in stating that he was never removed from federal service, this error was corrected by the Step III deciding official. We find that this error was harmless and does not mandate the restoration of the Grievant to the position he held before his removal. We also note that the Grievant’s removal was not before the Commission in our previous decision and is not currently before us. Finally, we note that the Grievant asks that we reconsider the affirmance of the Agency’s dismissal of 6 of his 13 claims. We decline. The Grievant had the opportunity to seek reconsideration of our decision in EEOC Appeal No. 0120152324, like the Agency, but did not. 2019000741 6 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. 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. 2019000741 7 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 August 4, 2020 Date