Detra W.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0120171774 (E.E.O.C. Oct. 23, 2018)

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

Detra W.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120171774

Hearing No. 443-2015-00143X

Agency No. ARUSAR14AUG02789

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 31, 2017
final order concerning an equal employment opportunity (EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as an Assistant Business Manager at the
Agency’s McCoy Community Club in Fort McCoy, Wisconsin.

On August 25, 2014, Complainant filed the instant formal complaint. Complainant claimed that
she was subjected to harassment and a hostile work environment based on disability and in
reprisal for prior EEO activity when:

1. since April 2014, her supervisor required her to use the time clock;
2. since April 2014, her supervisor asked her to do the duties of her subordinates;

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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3. on June 20, 2014, her supervisor denied her request to park her vehicle in the loading
zone to accommodate her, while she was using crutches;

4. since September 25, 2014, she has been relieved of managerial duties, she has not
been kept up to date of club activities and she has not been allowed to counsel or
correct her subordinates;

5. on October 8, 2014, she received a 7-day suspension;

6. on December 14 and 15, 2014, she received negative counseling; and

7. on August 26, 2015, she was issued a Notice of Decision Separation.2

After an investigation, Complainant was provided a copy of the investigative file, and requested
a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for
a Decision Without a Hearing. On March 22, 2017, the AJ issued a decision by summary
judgment in favor of the Agency.3

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint:

As an Assistant Business Manager, Complainant’s duties were as follows: supervising
approximately 20 employees providing food and beverages to customers, handling the cash from
all the registers and internal controls, and preparing reports of business activities.

On April 8, 2014, Complainant suffered an on-the-job injury when she was hit by a food cart.
Complainant notified management of the injury the following duty day. From April 11, 2014 to
October 18, 2014, Complainant used crutches. On April 24, 2014, Complainant provided
Agency management medical documentation which indicated she could continue to work with
the use of crutches, but she needed a seated position. The documentation also noted although
Complainant could stand for brief time periods, she could do so for no more than five minutes
every two hours.

On April 11, 2014, the Director of Food and Beverage sent an email to Complainant after
receiving her medical restrictions, notifying Complainant that he had instructed management to
accommodate her injury by allowing her to have a light duty work assignment.

2 The record reflects that claims 4 – 7 were later amended to the instant formal complaint.

3 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified
individual with a disability.

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Complainant’s light duty assignment primarily consisted of performing administrative duties
from the Cashier’s Office. The Director’s email also advised Complainant not to perform any
duty outside of her medical restrictions.

On April 25, 2014, Complainant returned to work and started her light duty assignment. Based
on her medical restrictions, Complainant’s light duty assignment accommodated her limited
mobility and need to remain in a seated position most of the time during her recovery.
Complainant’s light duty assignment allowed her to perform more administrative functions
which she did ordinarily before her injury. While on light duty, Complainant performed
administrative duties which included, but were not limited to the following activities: record
keeping, cash handling and safe counts.

The Director of Food and Beverage and Chief of Business Activities both asserted that Agency
management changed Complainant from her routine manager duties to a light duty assignment
for the sole purpose of accommodating her medical restrictions and to allow her to work within
her restrictions. The Director of Food and Beverage and Chief of Business Activities also stated
that these changes were not made to penalize Complainant.

On June 4, 2014, Complainant’s light duty assignment was extended. At that time, Complainant
notified management that her doctor placed her on medical leave until July 16, 2014, under
Workers’ Compensation and the medical leave was extended until she received a release to
return to work without any restrictions. On September 25, 2014, Complainant returned to work
without any medical restrictions.

Regarding claim 1, Complainant asserted that since April 2014, her supervisor required her to
use the time clock.

The Director of Food and Beverage (no disability, unknown prior protected activity) stated that
during the relevant period she was Complainant’s supervisor. The supervisor stated that she
requires all employees to use the time clock. The supervisor stated that in April 2014, she noted
that Complainant was not using the time clock to punch in and out of work. Thereafter, the
supervisor asked the timekeeper what time Complainant left work on a certain date and the
timekeeper stated that because Complainant does not punch in or out, she did not know what
time she left work.

Further, the supervisor stated that when she checked with the prior manager, he stated he was
unaware that Complainant was not using the time clock to punch in and out during the time he
supervised her. The supervisor stated that she then instructed Complainant to start using the time
clock.

Regarding claim 2, Complainant alleged that since April 2014, her supervisor asked her to do the
duties of her subordinates. Specifically, Complainant claimed that the supervisor instructed her
to perform safe duties which her assistant would normally do.

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The supervisor stated that Complainant performed safe duties because “it is part of her duty “as
well as there. I don’t know if she performed the safe duties prior to her injury.” The supervisor
further stated that she does not recall having a conversation with Complainant about her duties.

Complainant asserted that the supervisor put her on safe duties because she was trying to force
Complainant to take off because the supervisor did not want a disabled employee. The
supervisor stated, however, that she followed Complainant’s medical restrictions by having her
do safe duties which was “not out of her realm to do it. I perform safe duties as well.”

Regarding claim 3, Complainant alleged that on June 20, 2014, her supervisor denied her request
to park her vehicle in the loading zone to accommodate her while she was using crutches.

The record reflects that Complainant was offered 1 or 2 spaces that were at the end of a
courtyard, the closest legal spaces to the club and closer than the marked disability spaces.
Complainant declined to park in either space.

The supervisor acknowledged denying Complainant’s request to park her vehicle in the loading
dock because to allow her to do so would be in violation of the Agency and Community Club’s
policies. The supervisor further stated that she suggested Complainant to park her vehicle “in the
parking spot behind the loading zone or she was welcome to use one of the parking front row
parking spaces. She grudgingly moved her car and complained about it. She moved her car just
straight back from the loading zone.”

Regarding claim 4, Complainant asserted that since September 25, 2014, she has been relieved of
managerial duties, she has not been kept up to date of club activities and she has not been
allowed to counsel or correct her subordinates.

The supervisor explained that due to operational needs, several matters have been “restructured”
for more efficient production. The supervisor stated that scheduling “has been assigned to the
managers of each department and [Complainant] is to look over the scheduling for errors. She
has NEVER been told she could not perform a rating on any employee…Nothing is a secret here
and she is never ‘left out’ [emphasis in its original].”

Furthermore, the supervisor stated she has not taken any duties “from anyone; things have been
restructured, but not taken away as [Complainant] alleges. I allocated other duties to her than the
ones she was originally use to performing before she went out on sick leave, due to necessity. I
explained this to her numerous times. She is unaccepting of any explanation from me.”

Regarding claim 5, Complainant asserted that on October 8, 2014, she received a 7-day
suspension.
The Chief of Business Activities (disability, unknown prior protected activity), also
Complainant’s second level supervisor, was the deciding official concerning the 7-day
suspension. The Chief explained that Complainant had been counseled on several occasions “for
lack of attention to detail with some repeated infractions to safeguarding government funds.”
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The Chief further stated that management proposed a 10-day suspension for Complainant but he
mitigated the action to a 7-day suspension because “she admitted her guilt and promised to
improve. I earnestly believe her actions were not deliberate but due to carelessness and lack of
attention to detail concerning the safeguarding of funds.”

The record contains a copy of the October 15, 2014 Notice of Decision on Suspension. Therein,
the Chief placed Complainant on notice that she would be suspended for 7 days effective
October 28, 2014. The Chief stated that while Complainant’s actions did not result in “the loss
of large sums of money, but internal controls are important to cash handling and regardless of the
amount of money lost this cannot be overlooked. There is a clear history of your lack of internal
controls…I feel these errors are the result of carelessness and you must be more vigilant to
ensure the paperwork is completed timely and correctly. As an employee with close to two years
of service to McCoy’s, you should be well versed on the policies and procedures, yet you still do
not know them.”

Regarding claim 6, Complainant alleged that on December 14 and 15, 2014, she received
negative counseling.

The supervisor stated that on December 14 and 15, 2014, she counseled Complainant.
Specifically, the supervisor stated that the first incident occurred when Complainant created a
disturbance with other managers, and the second incident resulted from her failure to follow
procedures related to timekeeping and safeguarding government funds. For instance, the
supervisor stated that Complainant created a disturbance with other managers “by speaking
negatively about me and the other one was about failure to do paperwork properly and not
following timekeeping procedures.”

Regarding claim 7, Complainant asserted that on August 26, 2015, she was issued a Notice of
Decision Separation.

The Chief was the deciding official to remove Complainant from Agency employment.
Specifically, the Chief stated that the basis for Complainant’s removal was her failure to
satisfactorily perform the critical elements of her position based upon observations by
management, feedback from several employees and data collected by the Community Club.

The record contains a copy of the August 26, 2015 Notice of Decision Separation. Therein, the
Chief placed Complainant on notice that she would be placed on administrative leave until her
separation on September 23, 2015 for failure to satisfactorily perform the critical job elements of
her position. The Chief noted that on March 20, 2015, Complainant was placed on a
Performance Improvement Plan based on the deficiencies in her performance as the Assistant
Business Manager. The Chief stated that Complainant was given 90 days to improve her
performance. Specifically, the Chief stated that management had concerns with Complainant’s
negligence in maintaining internal controls and her attitude towards the staff. The Chief stated,
however, Complainant had not improved during this period to satisfactorily meet the critical job
elements of her performance standards.
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Further, the Chief noted that on December 14 and 15, 2014, January 9 and 26, 2015, and
February 9, 2015, Complainant was issued five Memorandum for Counseling for paperwork and
time keeping, creating a disturbance, failure to handle funds correctly, unprofessional behavior
and failure to follow instructions. The Chief determined that the above-mentioned incidents
were unacceptable in the workplace and cannot be tolerated.

The Chief stated that he also took into consideration Complainant’s past record which included
numerous written counseling, a written reprimand on October 8, 2013, for failure to complete her
duties as a government credit card holder in a timely manner, and a 10-day suspension mitigated
to a 7-day suspension for violation of administrative regulations “where the safety of persons is
endangered, or funds or property is jeopardized. In researching all the facts, it is obvious that
there are no mitigating circumstances and your failure to obtain a satisfactory performance rating
in the critical elements of your position can no longer be tolerated…based on your lack of skill
sets in other positions and the numerous attempts at training to correct your deficiencies, there is
no other position within McCoy’s Community Club or the Directorate which you can be placed
in through either reassignment or demotion. Therefore, my decision is to sustain the separation
action.”

Moreover, the Chief stated that Complainant’s disability and prior protected activity were not
factors in his decision to separate Complainant from Agency employment.

The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus.
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Here, however, Complainant failed to establish such a dispute. Even construing any inferences
raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in
Complainant’s favor.

Disparate Treatment

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant
did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext
designed to mask discrimination on any basis alleged.

Harassment

To prove her harassment claim, Complainant must establish that she 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 a protected basis – in this case, disability and/or retaliatory
animus. Only if Complainant establishes both of those elements – hostility and motive – will the
question of Agency liability present itself. Here, the AJ found that the evidence of record did not
establish that Complainant was subjected to harassment based on disability and prior protected
activity. We determine that the AJ’s analysis that Complainant failed to prove her harassment
claim was also proper.

Reasonable Accommodation

Under the Commission’s regulations, an agency 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 accommodation would cause an undue hardship. 29
C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified
individual with a disability.

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Here, Complainant claimed that management failed to provide her with a reasonable
accommodation. We find, however, that substantial record evidence supports the Agency’s
finding that Agency management accommodated Complainant within her medical restrictions.
There is no evidence of record to dispute this assertion. Complainant is entitled to a reasonable
accommodation, but not necessarily the accommodation of her choice. The evidence supports
the Agency’s conclusion that Complainant was provided an effective accommodation.

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination.

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).

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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

October 23, 2018
Date