Meghann M.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 14, 2017

0120151686 (E.E.O.C. Dec. 14, 2017)

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

Meghann M.,1
Complainant,

v.

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

Appeal No. 0120151686

Agency No. DON-13-00183-03456

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 20, 2015, 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. For the following reasons, the Commission AFFIRMS the
Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Health Systems
Specialist at the Agency’s facility in Portsmouth, Virginia. On December 2, 2013, Complainant
filed an EEO complaint alleging that the Agency subjected her to unlawful harassment on the
basis of her disability (back injuries) when:

1. on September 6, 2013, management issued her a performance appraisal that did
not accurately reflect her performance and failed to provide her with a progress
review;
2. on September 6, 2013, management passed her over for promotion opportunities
and did not select her for either of two job openings within her department;

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 September 6, 2013, management denied her request for job certification
training;
4. on August 9, 2013, her supervisor (S1) directed her to speak with the human
resources specialist (HRS) about retirement;
5. on August 9, 2013, management changed her leave without pay (LWOP) to
absent without leave (AWOL) on her time and attendance record;
6. on August 9, 2013, management denied her request to work compensatory time;
7. on unspecified dates, S1 ignored her when she spoke with her, both verbally and
in writing; and
8. on unspecified dates, S1 gave coworkers credit for work performed by
Complainant and did not compensate Complainant for work performed at the GS-
12 level.

Complainant also alleges that the Agency subjected her to reprisal for prior protected EEO
activity when: (9) management “demoted” her job assignment and her duties were delegated
among her coworkers.

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 Equal Employment
Opportunity Commission 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. On
appeal, Complainant reiterates her contention that she was subjected to unlawful harassment and
reprisal.

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, at Chapter 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”).

It is well-settled that harassment based on an individual's disability is actionable. See Meritor
Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment,
the complainant must show that: (1) she is a qualified individual with a disability covered under
the Rehabilitation Act; (2) she was subjected to unwelcome conduct; (3) the harassment
complained of was based on her disability; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability to the employer. See
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Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be
evaluated from the objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Svs. Inc., EEOC Notice No. 915.002 (March 8,
1994).

In other words, 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 her disability. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.
Here, we find that, after careful consideration of the evidence of record, Complainant has failed
to show that the incident occurred as alleged or were motivated by discriminatory animus toward
her disability.

With respect to claim (1), S1 states that Complainant was given an acceptable rating on her
performance appraisal and that the rating was an accurate reflection of the quality of her work for
the rating period. S1 also states that both she and Complainant’s second-level supervisor
provided Complainant with verbal feedback during the period at issue. As to claim (2), the
record does not show that Complainant applied for either of the two positions for which she
alleges she was not selected. As to claim (3), S1 denied that Complainant requested job
certification training and states that had Complainant requested the training, she would have been
considered. With respect to claim (4), S1 states that on the date at issue, Complainant informed
her that she could not complete an assigned task because she had taken medication to deal with
the pain of her disability. S1 states that she told Complainant that she should speak with the HRS
about a possible “disability program that would allow for her to be away from the work place so
as to have time to recover” from her injuries. The HRS states that when Complainant contacted
her, she discussed the possibility of Complainant requesting a reasonable accommodation for her
disability. The evidence of record does not show that Complainant ever requested a reasonable
accommodation. As to claim (5), the record does not support Complainant’s contention that she
was charged with AWOL on August 9, 2013, and with respect to claim (6), the record shows that
no compensatory time was granted to any employee, such as Complainant, not involved in direct
patient care. As to claims (7) and (8), we find that the record does not contain any evidence,
beyond Complainant’s assertions, to support these allegations. We further find that Complainant
has not shown that any of these incidents of alleged harassment were motivated by her disability.

Finally, as to claim (9), to prevail in a disparate treatment claim, Complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by
demonstrating that she was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a
legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
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preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of reprisal
discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, although S2 states that although Complainant “consistently received
positive recognition and accolades” for her work with the computer systems at issue,
management determined that the project had grown to the point where additional personnel
needed to be involved at earlier points in the process. S1 also states these additional employees
were added as quality management staff which “does not relate to [Complainant’s] function.”
We find that Complainant was never demoted as she alleged. We find that Complainant has not
proffered any evidence to show that the Agency’s articulated reasons for its actions were a
pretext for unlawful retaliation.

CONCLUSION

We AFFIRM the Agency’s final decision 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.
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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. 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 14, 2017
Date