Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jul 18, 2014

0120123156 (E.E.O.C. Jul. 18, 2014)

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

,
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120123156

Agency No. 110017303327

DECISION
On August 9, 2012, Complainant filed an appeal from the Agency’s July 9, 2012 final decision
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Clerk, NC-0303-02, at the Naval Research Laboratory in Washington, DC. On July 26, 2011,
Complainant filed an EEO complaint alleging that the Agency discriminated against her and
subjected her to a hostile work environment on the basis of disability when: (1) she was
threatened with disciplinary action which resulted in a Performance Improvement Plan (PIP)
on April 21, 2011, cancelation of the PIP on May 5, 2011, and being threatened with another
PIP once her accommodation issues were resolved; (2) she received continual requests for
additional medical information to document her physical limitations even though medical
documentation was already on file; (3) she was falsely accused of sleeping on the job; (4) her
cell phone and personal internet usage were restricted; and (4) she was falsely accused of not
wanting the accommodations provided by the Agency. Complainant also claims that the
Agency subjected her to a hostile work environment on the basis of reprisal via her
supervisor’s (S1) email communications with her, including his use of all capital letters and
exclamation points.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
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Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.

The record shows that Complainant has a Department of Labor (DOL) recognized work-related
injury with permanent restrictions. She was diagnosed with bilateral carpal tunnel syndrome in
1994 and had surgeries for that condition in 1994 and 2011. Complainant also has a ganglion
cyst on her thumb. Her impairment makes her “clumsy.” She has difficulty lifting and
grasping objects, she cannot twist her wrists or bend her thumb. She also has difficulty
driving, turning, twisting, typing and writing by hand. Anything can set off her condition,
such as dialing a telephone, clicking buttons or picking up a coffee cup. In addition, she
currently has a 20-pound lifting restriction.

The record shows that Complainant accepted her position in 2008, which was in accordance
with her physical restrictions. The job offer states that there is no repetitive work. All hand
manipulation is intermittent. The job offer also states that intermittent use of the keyboard or
mouse rarely goes beyond two cumulative hours per day. The position description states that
Complainant is responsible for screening requests for public works services throughout the lab
and field sites. In addition, Complainant is responsible for scheduling work with the customers
and shop personnel and follows up to ascertain that the work has been completed satisfactorily.
Complainant is also responsible for maintaining statistics on a number of requests for work
received by the division, and performs regular analysis of completed service requests to
determine the average length of time for completion of each shop trade. The record also
shows that in 2009, Complainant’s work station was rearranged and she was provided special
equipment, including a digital voice recorder, Dragon Professional 10 Software, and eight
hours of training on it, in order to reduce use of her hands throughout the day.

The testimonial and documentary evidence shows that on February 2 and 8, 2011, Complainant
told S3 that her medical condition had changed and that her doctor put her on additional
restrictions. Specifically, Complainant explained that her current two-hour “hand
manipulation” restriction included the use of a pen or pencil, and even her index finger to dial
the telephone keypad. Complainant further advised S3 that she could no longer do the job that
she accepted in 2008, because the job requires her to do more than two hours of hand
manipulation each day.

On February 16, 2011, S3 sought additional medical documentation from Complainant in
response to her statement that she could no longer perform her job without additional
accommodations. S3 noted that Complainant had previously received a headset and voice
activated software to help eliminate hand manipulation. On February 16, 2011, Complainant
responded that the voice activated software that she had received previously was not suitable
for a service desk setting. In an email dated February 17, 2011, a human resources specialist
requested that Complainant contact the EEO office if she believed that she needed additional
accommodations.

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On April 21, 2011, S1 issued Complainant a Notice of Unacceptable Performance and
instituted a 21-day PIP. S1 asserts that he instituted the PIP because Complainant’s
performance was slipping. In addition, S1 noted that he observed Complainant sleeping
several times and she was reclining back in her chair, fully asleep, on at least one occasion.
S1 counseled Complainant about sleeping on duty. When she provided a statement from her
doctor stating she was on medication that made her drowsy, S1 tried to institute a rest or nap
period for her, but Complainant did not want to extend her work day.

On April 25, 2011, Complainant requested additional accommodations limiting the use of her
hands. Although she did not provide updated medical documentation, on May 5, 2011, S1
issued Complainant a “Notice of Change to Performance Improvement Plan (PIP) and Medical
Documentation Requirement,” which cancelled the pending PIP and instructed Complainant to
provide updated medical documentation to explain what specific motions other than
keyboarding and using a mouse were included in her restrictions. Complainant submitted
additional medical documentation. Thereafter, Complainant was given updated voice activated
software (Dragon 11 Speech) and additional training.

The record shows that despite technical support, utilizing the voice activated software was
difficult for Complainant because her computer was too slow. The record also shows that
Complainant received an upgraded computer, once management was advised of the technical
problems. The record further shows that a substantial part of Complainant’s frustration related
to her failure to properly use the software. Complainant received a substantial amount of
training to assist her with various issues that arose.

On June 28, 2011, S1 informed Complainant that the PIP would not be reissued until
Complainant completed four additional hours of training on the Dragon 11 software and four
additional hours of training on the voice recorder training with respect to the Command Utter
software. The record shows that in September and November 2011, Complainant had
technical difficulties with the software and received technical assistance.

ANALYSIS AND FINDINGS
Claim 1 – Threats of Disciplinary Action

The record supports S1’s assertion that he issued Complainant a PIP because her performance
was slipping, and he observed her sleeping on duty several times. S1 denies threatening
Complainant and does not feel that his statements regarding the PIP should have been
construed as a threat. The record also shows that S1 withdrew the PIP to address
Complainant’s accommodation issue. S1 states that Complainant’s performance improved after
she was given a PIP and that she is currently meeting her performance standards.

Upon review of the record, we find insufficient evidence proving that the Agency’s articulated
legitimate, non-discriminatory reasons for issuing Complainant a PIP (i.e., her performance
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was slipping and she was sleeping on the job) were pretext or otherwise motivated by her
disability.

Claim 2 – Requests for Medical Documentation

Complainant stated that she submitted all of her medical documentation to the Federal
Employees Compensation Act (FECA) representative, and she was under the impression that
he would forward any necessary documentation to S1. She further stated that she filled out
forms provided by the DOL and acknowledged that the only medical documentation she gave
S1 was doctor’s excuses for days off and appointments.

The record shows that after Complainant informed S3 that her medical condition had changed,
S3 met with Complainant and S1 to determine whether she could perform her duties with voice
activated equipment and requested further documentation from Complainant to clarify her
restrictions. S3 explained that he did not have access to any of the medical documentation that
Complainant provided to the DOL. An Agency human resource specialist (HR) confirmed the
fact that medical documentation located in Complainant’s DOL file was not shared with any
management officials.

The Rehabilitation Act places certain limitations on an employer's ability to make disability-
related inquiries or require medical examinations of employees. An employer may make a
disability-related inquiry or require a medical examination of an employee only if the inquiry
or examination is job-related and consistent with business necessity. See EEOC Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the
Americans with Disabilities Act, No. 915.002, at 5 (July 27, 2000). This standard is met
when the employer has a reasonable belief, based on objective evidence, that (1) an employee's
ability to perform essential job functions is impaired by a medical condition; or (2) that an
employee poses a direct threat due to a medical condition. See id.

at 6-9.
We find that the Agency’s request for additional medical documentation was appropriate,
because Complainant did not provide adequate information to management from which to
determine whether it was necessary for her to have additional accommodations that would have
enabled her to successfully perform the duties of her position. See Norton v. Dep’t of
Veterans Affairs

, EEOC No. 01A51018 (Feb. 21, 2006).
Claim 3 – Unfairly Accused of Sleeping on the Job

The undisputed record shows that Complainant was taking medication that made her sleepy and
as a result she would often be drowsy and, at times, fall asleep at work. Once Complainant
explained to S1 and S3 the problem with her medication, she was permitted to take leave and
go home or take unpaid breaks to nap at work. We find that the record is devoid of evidence
to support the conclusion that Complainant was unfairly accused of sleeping on the job or
otherwise treated in a discriminatory fashion.

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Claim 4 – Restricted Personal Use of Cell Phone and Internet

Despite Complainant’s assertions, the record supports the finding that Complainant used her
cell phone and internet excessively during work hours. The record also supports the
conclusion that S1 restricted Complainant’s cell phone and internet usage in an effort to correct
poor performance and to limit the time spent on hand manipulation tasks to mostly work-
related functions. The record is devoid of evidence to suggest that animus toward
Complainant’s disability was the motivating factor in management’s decision to limit her cell
phone and internet usage.

Claim 5 – Falsely Accused of Not Wanting Accommodations

We find that the various accommodations offered by the Agency were appropriate under the
circumstances herein. The record supports the finding that Complainant rejected the
reasonable offers to accommodate her drowsiness. We also find that Complainant was
provided appropriate voice activated software that required technical support and training.
While the record shows that the technical support appears to be a somewhat ongoing process,
the problems associated with the software have improved over time and throughout the
interactive process. Moreover, the record supports the conclusion that management officials at
all times relevant to this complaint, acted in good faith to provide Complainant with the
necessary accommodations. In addition, the record shows that Complainant received
numerous hours of training which increased the effectiveness of the accommodations.1

Claim 6 - Reprisal

We find the record devoid of evidence supporting the conclusion that S1’s emails to
Complainant which contain capital letters and exclamation marks were motivated by
Complainant’s EEO activity. We note that the evidence supports the finding that S1 habitually
wrote emails in such manner to other members of his staff, including individuals without prior
EEO activity or disabilities. Accordingly, we find insufficient evidence that S1 engaged in
retaliatory conduct.

Based upon a thorough view of the record, we find insufficient evidence to conclude that
Complainant’s work environment was so abusive that it altered the conditions of her
employment. In addition, we find insufficient evidence that the Agency was motivated by
discriminatory or retaliatory animus.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the final
decision.

1 We note that the undisputed record shows that Complainant’s work improved and she was not
reissued a PIP after the Agency installed the new software.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 18, 2014