Doris W.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionDec 13, 20180120171834 (E.E.O.C. Dec. 13, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Doris W.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120171834 Agency No. ARLEE15JAN00532 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated March 31, 2017, finding no discrimination regarding her 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist (Network), GS-2210-12, at the Agency’s Combined Arms Support Command (CASCOM) and Sustainment Center of Excellence (SCoE), CIO G6, Fort Lee, Virginia. On March 13, 2015, Complainant filed her complaint alleging discrimination based on race (African American), sex (female), disability (carpal tunnel syndrome, tendonitis, and tennis elbow), and in reprisal for prior EEO activity when: 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. 0120171834 2 (1) On July 1, 2014, during her initial midpoint evaluation, her supervisor (S1) did not remove an inventory requirement that was beyond her medical limitation; (2) On September 11, 2014, S1 asked for medical documentation regarding her work limitation and prognosis after she had been providing work limitations she received from Kenner Army Health Clinic from 2011 until 2014; (3) On October 1, 2014, S1 failed to acknowledge her second request for a magnifying glass in order to complete an inventory; (4) On October 8, 2014, although she received her reasonable accommodation items, the equipment did not assist her in completing her inventory and resulted in her having to take time off due to hand, wrist, arm, and finger pain; (5) On October 20, 2014, in retaliation for her EEO complaint, S1 gave her the additional duty as the sub-hand receipt holder (SHRH) for CASCOM G6 and gave her an unrealistic goal to complete a joint inventory; (6) On November 21, 2014, S1 disregarded her medical limitations and never discussed them with her; and (7) On March 12, 2015, she informed S1, in response to another task, that she was not going to be bullied into overextending herself beyond her physical capabilities. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. 0120171834 3 Complainant indicated that she was diagnosed with carpal tunnel syndrome in 2012, tendonitis in 2013, and tennis elbow in 2014. She indicated that she experienced constant pain her fingers, hands, wrists, forearms, and elbows which was aggravated by excessive typing and slowed her down. As an IT Specialist (Network), Complainant was required to perform a work order database for IT support, including resolving hardware issues or software issues, requesting new equipment, accommodation, and site surveys. The record indicates that on February 27, 2012, Complainant submitted a statement from the Agency’s Kenner Army Health Clinic indicating that: [Complainant] completed her Occupational Health Medical Surveillance IAW Occupational Medical Examinations and based upon that examination, she met medical requirements to perform duties of the Agency’s civilian employee. [Complainant] however had the following limitations; no heavy or repetitive lifting/pushing/pulling/carrying greater than 10 pounds, no forceful or impact work, may perform limited computer or typing input not to exceed 10 minutes consecutively followed by 5-minute cessation of computer input until April 27, 2012. Complainant submitted additional statements every 90 days through July 22, 2014, with identical limitations. S1 noted that in 2012, Complainant informed him of her wrist, elbow, specifically carpal tunnel syndrome, in conjunction with her limitations. S1 stated that Complainant was accommodated with the foregoing limitations and there was no issue of Complainant taking breaks as needed and working at her own pace. Complainant acknowledged that she limited her computer use and took frequent breaks and she was able to perform all her position duties. In June and July 2014, the Clinic and Complainant’s doctor, in addition to the limitations, above, recommended that Complainant be provided with the Dragon dictation, “AsUtype” software, and Microsoft wireless laser mouse 5000. Complainant indicated that she was provided with the requested items in October 2014. However, stated Complainant, they were ineffective. She noted that she initially requested an ergonomic keyboard and some other items in February 2011, but she canceled the request in March 2011, because the items were provided by her office. S1 indicated that the requested accommodations were delayed due to the availability of the Agency funds. Based on the foregoing, we find that the Agency’s delay providing Complainant’s requested accommodations was harmless since they were found to be ineffective. We note that Complainant was subsequently moved to another section (Ordinance) in May 2015, doing the same type of work but with less typing and her pain level decreased significantly (level 1 on a scale of 1 to 10, with 10 being the worst pain). She continued to take frequent breaks from typing. Regarding claim (1), S1 indicated that the subject inventory requirement was added in Complainant’s support form on July 1, 2014, because she failed to complete that assignment when it was assigned to her back in the fall of 2013. Although Complainant had been asked on several occasions about its status, she made no attempt to start or complete the task. 0120171834 4 S1 noted that all other technicians completed the same assignment along with their other duties within a 30 to 60-day timeframe. S1 indicated that Complainant was provided with the formatted spreadsheet with some information to prevent her from having to perform repetitive entries. He also sent someone to assist her as well. S1 stated that the subject requirement was ultimately removed from Complainant’s final performance evaluation based on the difficulties she experienced with filling out the spreadsheet. Regarding claim (2), S1 indicated that on September 11, 2014, he asked for Complainant’s medical diagnosis in order to fill out a Form CA2 she submitted for her disability claim. S1 noted that he was never provided a doctor’s note from Complainant indicating her underlying medical condition or her diagnosis. Upon review, we find that S1’s request for Complainant’s additional medical documentation was proper since he needed her medical diagnosis from a doctor in order to fill out a Form CA2 and since her prior medical documentation lacked information as to whether her conditions were permanent in nature. Complainant provided medical statements indicating her temporary limitations lasted up to 90 days. Regarding claim (3), S1 denied he ignored Complainant’s request for a magnifying glass she made on September 26, 2014. When Complainant requested that item, S1 told her that he would order it when funds became available and he did order it on October 1, 2014. S1 believed Complainant received it along with other items and she never told him that she did not. S1 added that although Complainant provided no medical evidence to support that she actually needed a magnifying glass, he attempted to provide the assistance as she requested. Complainant acknowledged that she was given eyeglasses but they did not help her to read the serial numbers on the back of monitors. Regarding claim (4), management indicated Complainant was provided with her requested accommodations, i.e., the Dragon dictation, AsUtype software, and Microsoft wireless laser mouse 5000. Management noted that Complainant never told management that those items were ineffective. We note that although the requested items were not provided to Complainant until October 2014, there is no evidence that she was harmed as a result of the delay. Furthermore, we note that there is no evidence that Complainant requested other items which would have effectively accommodated her conditions. Regarding claim (5), S1 indicated that Complainant was assigned the SHRH duty normally done by a coworker, because that coworker was scheduled to be out of the office in November 2014, and S1 wanted the task completed before the coworker left. S1 stated that the subject duty did not involve any typing; rather it merely required the two of them to walk around the workplace from cube to cube and mark off on the inventory sheet and acknowledge she individually looked at each piece of equipment and was going to take responsibility for it. S1 asserted that it would have taken Complainant no more than about four hours to complete SHRH duty. Complainant did not finish the assignment until January 21, 2015. 0120171834 5 Regarding claim (6), S1 denied he disregarded Complainant’s medical limitations. Complainant was allowed to work or take breaks as needed under her limitations and was provided with all her requested accommodations. Complainant has not identified a specific accommodation that was denied regarding this claim. Regarding claim (7), S1 denied he bullied Complainant as alleged. S1 indicated that Complainant’s Life Cycle Replacement (LCR) work order, a daily task, was assigned to her on March 9, 2015. When Complainant failed to complete the task by March 11, 2015, S1 went to her and directed her to complete the task by March 12, 2015. The LCR task merely required her to walk through approximately 20 cubicles to provide a count of about 40 computers and 6 monitors that needed to be life-cycled out and to fill out a work order. S1 asserts that the task would have taken no more than 15 minutes to complete. Complainant has not claimed or shown that she was denied a specific accommodation regarding completing this task. Based on the foregoing, assuming (without deciding) that Complainant was an individual with a disability, we find that Complainant failed to show that she was denied a reasonable accommodation. And, there is no evidence that Complainant was required to perform duties beyond her medical restrictions. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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), 0120171834 6 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. 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. 0120171834 7 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 December 13, 2018 Date Copy with citationCopy as parenthetical citation