Carlton T.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 7, 2018

0120151566 (E.E.O.C. Feb. 7, 2018)

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

Carlton T.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120151566

Agency No. DON-12-00128-02163

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the February 9, 2015 final Agency decision (FAD) 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 FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Automotive Skills
Branch Manager in the Morale, Welfare, and Recreation (MWR) Department at the Agency’s
Naval Station in Great Lakes, Illinois. Complainant was out of the workplace from some point
in 2010 on disability leave, and underwent a liver transplant in September 2011. Complainant
returned to work from liver transplant surgery in January 2012. Complainant submitted medical
documentation indicating that he had been placed on a 10-pound lifting restriction until
September 2012. On January 12, 2012, Complainant claimed that he met with his first and
second-level supervisors (S1 and S2 respectively) to inform them that his father had passed

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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away. Complainant stated that S2 expressed his condolences while S1 seemed irritated and did
not say anything.

Additionally, in January 2012, Complainant met with S1 and S2 to discuss a customer that owed
a large amount of money to the Auto Shop. Complainant claimed that he made a comment about
wanting to know both sides of the story. A week later, management met with the customer and
Complainant stated that it appeared that the customer was being singled out. Following the
meeting, Complainant alleged that S2 yelled at him stating “Here we are trying to get money and
you say something like that? Are you with us or against us?” Complainant stated that he
responded that he had simply stated what he believed. Complainant claimed that this made it
uncomfortable for him to return to work.

After returning to work in January 2012, the Acting Manager assisted Complainant in
transitioning back into the position and trained Complainant on the computer, cash register, and
how to complete some paperwork. Complainant alleged that the Acting Manager failed to
properly train him to perform all of his duties and that as a result, he was blamed for several
errors. Additionally, Complainant claimed that S1 gave him more work which led to him not
properly learning how to do his job. Nonetheless, Complainant initialed the training log and
indicated to S1 that he was ready to take over the shop. Complainant later informed S1 that he
felt overwhelmed and confused from S1’s pressure and demands, and that he was not properly
trained. Complainant claimed that management failed to respond to his concerns.

From January 2012 to April 2012, Complainant claimed that S1 often pulled him away from
tasks he was attempting to learn in order to do special events away from the office. Complainant
believed that S1 was badgering him. Complainant and his wife (an Agency employee)
subsequently met with management in March 2012, to discuss the difficulties Complainant was
having learning his job. During this meeting, Complainant informed management that he needed
more time to learn the job and asked about an accommodation.

The Agency’s uniform policy went into effect while Complainant was out on sick leave.
Employees were required to wear a blue, button-down short-sleeve shirt. Complainant explained
to S1 he did not feel comfortable wearing this type of shirt and refused to wear the shirt. In
February 2012, Complainant alleged that he submitted a purchase order for five polo shirts and
that S1 reluctantly approved it. Complainant claimed that he was later written up in his
performance evaluation for ordering the shirts and that S2 called it a waste of government
money.

On March 14, 2012, Complainant submitted documentation from his doctor in which his doctor
stated that because of “recent significant medical treatments as well as some personal struggles,
he has been suffering from anxiety which is interfering with his readjustment to work.”
Complainant’s doctor stated that he believed that Complainant’s condition would improve, but
that he would benefit from “reduced responsibilities or additional assistance at his place of
employment.” On April 19, 2012, S1 issued a memorandum responding to the accommodation
request stating that Complainant’s request could not be granted because the basic responsibilities
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associated with Complainant’s management position could not be reduced without eliminating a
majority of the job duties and requirements. The memorandum noted that since Complainant’s
return to work, management had adhered to all of Complainant’s physical restrictions and that
management would continue to provide assistance and training to support Complainant in
performing the duties of his position.

Management determined that Complainant was not satisfactorily completing his duties. S1
consulted with the Human Resources (HR) Manager about how to address Complainant’s
deficiencies. The HR Manager informed S1 that she could issue Complainant a special
evaluation. On March 26, 2012, S1 and S2 met with Complainant and issued him a special
evaluation for the period of January 2012 through March 2012, informing him that his
performance was not at an acceptable level. Complainant was rated as “Unsatisfactory” in four
out of seven performance areas and rated overall as “Unsatisfactory.” During the meeting, S2
told Complainant that his wife could not use her government credit card to purchase his shop
supplies. Complainant claimed that he requested more time to learn his duties, but neither
responded. Complainant believed that the evaluation was improper because he had worked less
than 90 days. During the meeting, management additionally issued Complainant a Letter of
Caution identifying the areas in which Complainant needed improvement and deficiencies in his
performance. Complainant believed it was an unfair assessment of his work performance.

On April 19, 2012, Complainant’s wife contacted S1 to inform her that Complainant was being
transported to the hospital. Complainant stated that he experienced severe headaches and body
aches and the tests indicated he had an infection. Complainant believed that his condition was
caused by the stress created by management’s treatment of him. Complainant submitted medical
documentation from his doctor indicating that Complainant could not return to work at the time
because his “current job [was] too stressful and causing severe depression.” The report noted,
however, that Complainant could return to work for five hours per day in a “new friendly
environment [and] management.”

On July 31, 2012, S2 issued Complainant a Notice of Proposed Disability Separation. The notice
stated that Complainant had been out on Family Medical Leave Act (FMLA) leave for 12 weeks
and Complainant’s most recent medical documentation indicated that he could perform his
duties; however, not at the MWR facility as it would be determinantal to his mental health.
Complainant submitted a rebuttal the following day. On August 10, 2012, S2 issued
Complainant a memorandum rescinding the Proposed Disability Separation and informing him
that he would be placed on leave without pay (LWOP) until further notice as his FMLA leave
had expired.

On August 1, 2012, Complainant claimed that he went to the office with his wife to collect his
personal belongings when S1 asked him if he wanted to sign a resignation form. Complainant
stated that his wife responded that he did not. Complainant believed that this was an attempt to
get rid of him. On August 16, 2012, Complainant learned that his position had been posted as a
competitive vacancy announcement on August 7, 2012. Complainant stated that the
announcement was subsequently cancelled and that no one was selected for the position.
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On August 3, 2012 (and amended on August 20, 2012), Complainant filed a formal complaint
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of disability, age (58), and in reprisal for prior protected EEO activity
when:

1. In January 2012, upon returning to work from liver transplant surgery, Complainant’s
father passed away and his first-line supervisor was irritated about him taking
additional time off;

2. In January 2012, after a meeting with a customer, Complainant was confronted by his
second-line supervisor in a loud voice asking him if he was with them or against
them;

3. In January 2012, Complainant was being trained by the Acting Manager and he was
told to initial a log of all activities even though he did not feel like he was completely
trained on them;

4. From January 2012 to April 2012, Complainant’s first-line supervisor would pull
Complainant away from his work daily to do other work, making it very stressful and
difficult for him to get his work completed;

5. In February 2012, Complainant placed an order for polo uniform shirts and they were
approved by his first-line supervisor. Then, on March 26, 2012, Complainant was
written up in his performance evaluation for ordering them;

6. On March 26, 2012, Complainant received an unsatisfactory performance evaluation
for the time period of January 12, 2012 to March 26, 2012;

7. On March 26, 2012, Complainant received a two-page letter of caution/requirement
for his work performance;

8. On April 19, 2012, Complainant was hospitalized from the stress of the workplace;

9. On April 19, 2012, Complainant was given an accommodation letter which stated that
the Agency could not accommodate his request;

10. On July 31, 2012, Complainant received a notice of proposed disability separation;

11. On August 1, 2012, Complainant went to the office to retrieve personal belongings
and was asked by his first-line supervisor if he wanted to sign resignation papers; and

12. On August 16, 2012, Complainant learned that his position of Auto Skills Branch
Manager was posted as a competitive vacancy announcement on August 7, 2012.
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At the conclusion of 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 a Commission
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially assumed arguendo that Complainant is an individual with a
disability. With respect to his reasonable accommodation request alleged in claim (9), the
Agency determined that Complainant did not establish that he was capable of performing the
essential functions of his job, with or without reasonable accommodations. The Agency found
that Complainant’s request was vague in nature, but requested that Complainant’s
responsibilities as a manager be lowered. S2 maintained that they could not accommodate the
request to lower Complainant’s responsibilities or provide him with an assistant to handle his
basic responsibilities. S1 added that the facility did not have any other staff that could assist
Complainant with performing his assigned tasks. S1 noted that Complainant provided no further
information from his doctor. The HR Manager concurred that Complainant’s managerial
position required a high level of responsibility and relieving Complainant of his duties was not a
feasible option because it would mean the facility would have to operate independently.
Accordingly, the Agency determined that management had not denied Complainant reasonable
accommodation in violation of the Rehabilitation Act.

With regard to the remaining claims, the Agency determined that the alleged incidents were
insufficiently severe or pervasive to establish a hostile work environment. Further, the Agency
found that there was no evidence that the alleged conduct was based on discriminatory or
retaliatory animus. For example, as to claim (1), both S1 and S2 denied that S1 acted irritated
that Complainant would be taking time off to attend his father’s funeral and both confirmed that
they were sympathetic to his situation. With respect to claim (2), S1 stated that Complainant’s
behavior during the meeting was inappropriate and unprofessional. After the meeting, S2
affirmed that he was firm with Complainant about the need to collect the fees and ensuring that
Complainant was aware that they had no authority to waive past-due fees.

Regarding claim (3), the Acting Manager stated that management created a list of activities for
Complainant to complete. The Acting Manager confirmed that both he and Complainant had to
initial the list to acknowledge completion of the listed items. The Acting Manager averred that
each time he attempted to train Complainant on a task, Complainant would refuse to do the task
and resisted training. The Acting Manager maintained that Complainant never said he felt he
was not being properly trained or that he was not grasping the training. S1 stated that
Complainant did not complain to her about training and willingly signed off on all the items
during the turnover and training period. S1 added that Complainant assured her everything was
fine with the exception of getting passwords set up for some of the databases and she encouraged
him to ask questions if he needed help or needed further clarification.

As to claim (4), S1 denied pulling Complainant away from any tasks that he was working and
stated that she would wait until Complainant completed a task before assigning a new task. S1
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further maintained that all tasks assigned to Complainant were assigned in advance with clear
deadlines.

With respect to claim (5), Acting Manager affirmed that S1 wanted him to order the uniform
button-down shirt that every employee wore for Complainant, but Complainant told him that he
did not wear button-down shirts. The Acting Manager confirmed that he gave Complainant the
phone number to call to order the mechanic shirt; however, Complainant ordered the polo shirts.
S1 asserted that she discussed the uniform policy with Complainant on several occasions, and
Complainant always had excuses for not wearing the uniform and failed to follow her directions.
S1 contended that she did not give her approval for Complainant to order the polo uniform shirts.
S1 stated that Complainant created a purchase order request with a polo-style shirt, and she
signed the purchase order request, assuming it was for the authorized mechanic shirt. When she
saw Complainant wearing the shirt, she inquired where it came from and told him that he should
not have ordered the polo shirts. S1 maintained that she counseled Complainant on his failure to
follow her directive regarding the uniform.

Regarding claims (6) and (7), S1 affirmed that she issued Complainant a special evaluation
because it was clear to her that Complainant was not performing his duties. S1 stated that she
followed guidance from the HR Manager that she could give Complainant a special evaluation,
which is given to an employee who had been trained and counseled, but failed to complete his
duties and responsibilities. S1 noted that there were a number of tasks Complainant had not
completed and she stepped in to assist Complainant with completing certain tasks, or completed
the task herself, in order for the task to be completed. For instance, S1 confirmed that that
Complainant failed to submit timely inventory reports, complete staff schedules, and follow
proper purchasing procedures. S1 maintained Complainant’s performance was below the
acceptable level. S2 agreed and stated that the purpose of the evaluation was to develop a
performance plan for Complainant due to his less than satisfactory performance. S1 asserted that
she consulted with the HR Manager and S2 and issued the Letter of Caution to identify areas
where Complainant needed improvement and identified the deficiencies in performance.

As to claim (8), S1 affirmed that she was aware Complainant was hospitalized, but not that it
was for stress. S1 explained that she received a doctor’s note on April 23, 2012, indicating that
Complainant would be able to return to work on May 3, 2012; however, he did not return to
work. Regarding claim (10), S2 confirmed that he initiated the proposed separation to ask for
detailed information concerning Complainant’s medical condition toward the end of his FMLA
leave. Further, S2 explained that after receiving the letter from Complainant’s doctor, which
stated he was able to work, but not at the facility, without any justification, management felt they
could no longer sit in limbo with Complainant’s position. S2 stated that he rescinded the
separation notice because management decided to request additional and more specific
information from Complainant’s doctor to address his medical issues, and to determine his need
for an accommodation.

With respect to claim (11), S1 affirmed that she could not recall the exact words she said to
Complainant when he came to the office to pick up his personal belongings, but she did inquire
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about his status. S1 averred that the HR Manager later informed her that she had discussed
Complainant’s status with him prior to him coming in to retrieve his belongings.

Finally, as to claim (12), S2 confirmed that he made the decision to recruit Complainant’s
position after he made the decision relating to the separation notice. S2 explained that once the
decision was made to rescind the separation notice, the job announcement was also rescinded.
S2 noted that the position was not posted for a full 24 hours.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination, reprisal, or a hostile work environment as alleged. Complainant filed the
instant appeal on March 18, 2015.2

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission does not have the benefit of an Administrative Judge’s credibility
determinations after a hearing. Therefore, the Commission can only evaluate the facts based on
the weight of the evidence presented. Here, Complainant asserted that based on his protected
classes, he was subjected to a hostile work environment due to several actions that seemed
adverse or disruptive to him. The Commission concludes that the conduct alleged was
insufficiently severe or pervasive to establish a hostile work environment. The Commission has
consistently held that the discrimination statutes are not civility codes. Petty slights, minor

2 Complainant’s May 20, 2015 brief in support was untimely filed and will not be considered in
this decision.
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annoyances, and simple lack of good manners occur in the workplace. Not every unpleasant or
undesirable act which occurs constitutes a discrimination violation. See Shealey v. Equal Emp’t
Opportunity Comm’n, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of
Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009)). What the discrimination statutes
forbid is behavior so objectively offensive that it alters the conditions of a complainant’s
employment. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, the Commission finds that Complainant failed to show that the Agency’s
actions were based on discriminatory or retaliatory animus. For example, as to claim (1), both
S1 and S2 denied that S1 had an irritated look on her face when Complainant requested
additional time off to attend his father’s funeral and both stated they expressed condolences to
Complainant. ROI, at 333, 348. With respect to claim (2), S2 denied yelling at Complainant,
but confirmed that he was firm with Complainant about the need to collect the fees from the
customer and ensured that he understood that the Agency had no authority to waive past-due
fees. Id. at 333.

Regarding claim (3), the Acting Manager stated that management created a list of training
activities and duties that he and Complainant were to initial and acknowledge that Complainant
had been trained on each item. ROI, at 324. The Acting Manager noted that Complainant
refused to pay attention or participate while he attempted to train him and instead would walk
away to talk to friends in the shop. Id. S1 affirmed that Complainant signed off on the training
list during the turnover period and indicated to her that everything was fine. Id. at 350. S1
asserted that she stressed to Complainant to tell her if he had any questions or needed help with
anything, but Complainant indicated that he was ready. Id. With respect to claim (4), S1 denied
pulling Complainant away from any tasks and emphasized that she would wait until he was not
busy with a task or customer to talk to him. Id. at 351. S1 noted that she asked Complainant to
travel to an event five or six weeks in advance; therefore, it could not have been a surprise. Id.

As to claim (5), S1 affirmed that she authorized Complainant to order a button-down mechanic’s
shirt in accordance with the Agency’s uniform policy. ROI, at 352. S1 added that she provided
Complainant with the vendor contact information and the uniform shirt details and told him to
order the proper shirts in his size. Id. Despite her instructions, Complainant ordered the polo
uniform shirts without telling S1. Id. S1 stated that she counseled Complainant on his failure to
follow her instructions and the Agency’s uniform policy. Id. With regard to claims (6) and (7),
S1 affirmed that she consulted with the HR Manager and was advised that she could issue
Complainant a special evaluation to address his performance deficiencies. Id. at 353. Among
the performance issues, S1 stated that Complainant failed to submit timely and accurate
inventory reports and follow purchasing procedures. Id. As a result, S1 issued Complainant a
special evaluation informing him that his performance was not at an acceptable level. Id.
Additionally, S1 issued Complainant a Letter of Caution explaining in what areas his
performance needed improvement. Id. at 354.

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With respect to claim (8), S2 stated that Complainant’s wife informed management that
Complainant had been hospitalized for stress. ROI, at 337. S1 noted that Complainant’s
submitted medical documentation indicated that he would return to work in May 2012; however,
he did not return. Id. at 355. As to claim (10), S2 affirmed that he issued the Notice of Proposed
Disability Separation based on the expiration of Complainant’s FMLA leave and his submitted
medical documentation indicating that he was able to work, but not at the MWR facility without
sufficient information indicating why. Id. at 338-39. Complainant submitted a rebuttal to the
notice and S2 ultimately rescinded the letter. Id. at 125. In the Proposed Disability Separation
Rescision, S2 requested updated and more detailed medical documentation to address
Complainant’s request for reasonable accommodation. Id. With respect to claim (11), S1
affirmed that she did not recall the exact words she used with Complainant when he returned to
the office to collect his belongings, but she was simply attempting to find out Complainant’s
status. Id. at 356. S1 noted that the HR Manager stepped in before Complainant answered to
inform S1 that she and Complainant had discussed his situation prior to S1’s arrival. Id. Finally,
as to claim (12), S2 confirmed that he decided to post the vacancy announcement as a result of
the separation letter; however, he pulled the announcement within 24 hours after the proposed
separation notice was rescinded. Id.

The Commission concludes that Complainant has not shown that he was subjected to a
discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant
claims that he was subjected to disparate treatment, the Commission finds that, as discussed
above, Complainant has not proffered any evidence demonstrating that the Agency’s explanation
for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that
Complainant was not subjected to discrimination, reprisal, or a hostile work environment as
alleged.

Denial of Reasonable Accommodation

The Commission notes that an Agency is required to make reasonable accommodation to the
known physical and mental limitations of an otherwise qualified individual with a disability
unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R.
§ 1630.9. To establish a denial of reasonable accommodation, Complainant 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 a reasonable accommodation. The Commission will assume without deciding (for the
purposes of this decision) that Complainant is an individual with a disability.

Upon review, the Commission finds that the Agency did not deny Complainant a reasonable
accommodation. Initially, Complainant returned to work from a liver transplant in January 2012.
Complainant’s doctor stated that he could resume his managerial duties with only a 10-pound
lifting restriction until September 2012. ROI, at 96. Complainant acknowledges that
management adhered to that restriction. Id. at 285. In March 2012, Complainant submitted
medical documentation stating that due to “recent significant medical treatments as well as some
personal struggles, he has been suffering from anxiety” and that Complainant “would benefit
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from reduced responsibilities or additional assistance.” Id. at 97. Among the duties and
responsibilities of the Auto Skills Manager position, Complainant was responsible for
performing oversight over the entire 18,000 square foot facility; overseeing staff; enforcing the
rules of the facility; all administrative tasks; and maintaining shop safety. Id. at 346-47. On
April 19, 2012, management responded to Complainant’s request for reduced
responsibilities/additional assistance stating that they were unable to reduce Complainant’s
responsibilities within his position without eliminating a majority of the job duties and
requirements. Id. at 121. Further, altering Complainant’s duties to the magnitude requested by
Complainant’s doctor would essentially leave the facility without a functioning manager. Id. S1
noted, however, that management had honored Complainant’s 10-pound lifting restriction and
that she would continue to provide assistance and training to support Complainant in
successfully completing his duties. Id. Complainant subsequently went out on FMLA leave.

In May 2012, Complainant submitted additional medical documentation stating that Complainant
could work five “low stress” hours per day; however, he was “too stressed out and depressed as
he is unable to meet the demands of a manager position with new job tasks after he came back to
work.” ROI, at 104. Further, the medical documentation stated that Complainant could improve
in a “friendly environment.” Id. Complainant’s doctor, however, noted in the documentation
that he had not advised Complainant to return to work. Id. In June 2012, Complainant submitted
medical documentation from his doctor stating that he had still advised Complainant to not return
to work. Id. at 106.

On July 18, 2012, Complainant’s doctor indicated that Complainant was able to start working
again with no restriction “at any Navy branch other than Navy Morale, Welfare, and
Recreation.” Id. at 107. Agency management then issued Complainant the Notice of Proposed
Disability Separation as Complainant’s doctor had indicated that he could not perform his duties
in the MWR department. Id. at 122. Complainant stated in his rebuttal that he could perform the
duties of his position with no restrictions, but not at the MWR department based on
management’s treatment of him. Id. at 123-24. Management subsequently rescinded the
proposed separation notice and requested that Complainant submit updated medical
documentation that provided more information about the nature of his condition and what
particular accommodation would assist him in performing the duties of his position. Id. at 109-
12, 125. There is no evidence demonstrating that Complainant submitted the requested medical
documentation. Complainant did not return to work and was placed in LWOP status.

The record is clear that the Agency accommodated Complainant’s initial 10-pound lifting
restriction. Complainant later requested that management reduce his responsibilities and provide
assistance. The record demonstrates that management was willing to assist and train
Complainant regarding his duties; however, reducing his responsibilities would eliminate the
essential duties of his managerial position. The Commission has held that an agency is not
required to remove any of the essential functions of a position as a reasonable accommodation.
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans With Disabilities Act, Notice No. 915.002 (rev. Oct. 17, 2002).
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The Agency confirmed that altering Complainant’s managerial duties to the extent requested
would have left the facility without a manager.

In July 2012, Complainant’s doctor indicated that he could return to performing the duties of his
position, but not at the MWR facility. Complainant further indicated that management’s
treatment of him was detrimental to his health. The Commission finds that Complainant’s July
2012 reasonable accommodation request is essentially a request for a transfer to new
management. Generally, the Commission has held that an employer does not have to provide an
employee with a new supervisor as a reasonable accommodation. EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,
Notice No. 915.002, Question 33 (rev. Oct. 17, 2002) (employer not required to provide
employee with new supervisor as reasonable accommodation). Thus, the Commission finds that
the Agency was not required to reassign Complainant to a new supervisor as an accommodation.
Moreover, Complainant has not shown that there was a vacant, funded position for which he was
qualified and to which he could have been reassigned. Accordingly, the Commission finds that
Complainant failed to prove that the Agency denied him reasonable accommodation in violation
of the Rehabilitation Act.

Finally, the Commission notes that the Agency requested that Complainant submit additional
medical documentation in August 2012, to better determine what accommodation Complainant
needed in order to perform the duties of his managerial position. There is no evidence in the
record that Complainant submitted the requested documentation. Under the Commission's
guidelines, an agency may request additional information when presented with a request for
reasonable accommodation in order to evaluate a complainant’s proposed accommodation in
comparison to his current medical needs in order 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, 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 provide the
Agency sufficient medical 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 decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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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. 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.

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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

February 7, 2018
Date