Mohammad V.,1 Complainant,v.J. Mark McWatters, Chairman, National Credit Union Administration, Agency.

Equal Employment Opportunity Commission

Apr 25, 2018

0120161428 (E.E.O.C. Apr. 25, 2018)

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

Mohammad V.,1
Complainant,

v.

J. Mark McWatters,
Chairman,
National Credit Union Administration,
Agency.

Appeal No. 0120161428

Agency No. 15-04

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 February 11, 2016, final
decision concerning his 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 an Examiner, CU-11,
at the Agency’s facility in Phoenix, Arizona. On April 16, 2015, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the basis of his disability
(hearing impairment) when: (1) beginning in June 2014, management subjected him to
disparaging and condescending remarks and name calling; (2) management denied him a
reasonable accommodation; and (3) on February 4, 2015, management forced him to resign, in
lieu of termination, six days before the end of his probationary period.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a

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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hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 him to discrimination as alleged.

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”).

With respect to claim (1), to establish a claim of harassment a complainant must show that: (1)
they belong to a statutorily protected class; (2) they were subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on their 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). 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 Systems Inc., EEOC Notice No.
915.002 at 6 (Mar. 8, 1994).

Here, we find that Complainant failed to establish a claim of actionable harassment. Specifically,
we find that Complainant failed to show that the actions alleged were based on his disability.
Complainant alleges, and his supervisor (S1) acknowledges, that he told Complainant that he
“[lacked] common sense,” that he needed to “step it up because [S1 needed] to make a decision
of whether to keep [him] on or not,” and that Complainant “[needed] to find an answer on [his]
own.” S1 states that these comments were made during Complainant’s mid-year review in May
2014, and were intended to make it clear to Complainant that he needed to improve his
performance because he was still in his probationary period. Although Complainant contends
that S1 also made the comment that he “just needed to find a way to hear,” he acknowledges that
there were no witnesses to this alleged incident, S1 denies having made the statement, and even
assuming the statement was made, this single incident is not enough to support a finding of
discriminatory harassment.

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With respect to claim (2), under the Commission’s regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of a qualified
individual with a disability unless the agency can show that accommodation would cause an
undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). After receiving a request for reasonable
accommodation, the employer should engage in an informal process with the disabled individual
to clarify what the individual needs and identify the appropriate reasonable accommodation. See
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation),
EEOC Notice No. 915.002 (October 17, 2002); see also, Complainant v. Dep't of Homeland
Security, EEOC Appeal No. 0120080156 (Aug. 8, 2012).

Assuming, without finding, that Complainant is an individual with a disability within the
meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency
failed to reasonably accommodate him when it did not approve his request to be transferred back
to his previous unit. The record shows that Complainant made a formal request for a reasonable
accommodation in June 2014. Complainant specifically requested to be transferred to his
previous unit because he could not hear women’s voices as well as he could hear men’s voices
and his previous unit was comprised of primarily male coworkers. Complainant states that
although he was able to perform all other function of his position, he had difficulty following
conversations during round table discussions and that he needed to be able to hear and
understand his coworkers clearly during these discussions because he needed to be able to learn
from the more experienced Examiners. In support of his request, Complainant provided medical
documentation stating that a frequency modulation (FM) system, installed into his hearing aid,
would be an alternative accommodation. In his request, Complainant also stated that he wished
to be transferred back to his previous unit because he missed working with his friends and that he
didn’t have much in common with his new team, but that “the FM system will certainly help…in
my current group.”

The record shows that Complainant’s accommodation request was reviewed by the Disability
Program Manager and ultimately decided on by the Associate Regional Director Programs
(ARDP). The ARDP denied Complainant’s request for the transfer, but approved the
accommodation of the FM system as mentioned in his medical documentation. The record shows
that this system was ordered on September 11, 2014, and fitted for use on October 13, 2014. We
note that, although Complainant would have preferred to be transferred back to his previous
team, protected individuals are entitled to reasonable accommodation, but they are not
necessarily entitled to their accommodation of choice. Complainant v. U.S. Postal Service,
EEOC Appeal No. 01931005 (February 17, 1994). Here, the Agency provided Complainant with
a reasonable accommodation that was approved by his audiologist, and Complainant never
informed management that the accommodation was not effective. Accordingly, we find that the
Agency did not violate the Rehabilitation Act.

Finally, with respect to claim (3), 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
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demonstrating that he 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
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 disability
discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, S1 states that Complainant’s performance failed to meet expectations,
despite frequent, detailed feedback and guidance during his probationary period. The notice of
termination states that Complainant displayed “significant deficiencies in the following areas:
supervision and problem resolution, and job related knowledge and skills.” The notice also states
that Complainant has “not demonstrated that [he] can perform independent analysis and scrutiny
necessary to function independently” in his position. The notice cites numerous specific
incidents of poor performance that support S1’s determination to terminate Complainant’s
employment. We find that Complainant has not shown that the Agency’s articulated reasons for
allowing him to resign in lieu of termination were motivated by discriminatory animus or were a
pretext for unlawful disability discrimination.

CONCLUSION

Accordingly, 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
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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.

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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

April 25, 2018
Date