Raleigh T.,1 Complainant,v.Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jul 6, 2017

0120151516 (E.E.O.C. Jul. 6, 2017)

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

Raleigh T.,1
Complainant,

v.

Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 0120151516

Agency No. 14-61726-01715

DECISION

On April 7, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s April 4, 2015, 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.

BACKGROUND

Complainant worked as a Probationary Medical Records Technician at the Naval Branch Health
Clinic in Groton, Connecticut. On May 7, 2014, Complainant filed an EEO complaint in which
he raised the following claims:

1. The Medical Records Supervisor, his immediate supervisor (S1), discriminated against
Complainant on the basis of disability (long-term effects of back injury sustained in
1992; post-traumatic stress disorder; military sexual trauma) when:

a. From September 15, 2013 through January 24, 2014, S2 failed to provide him
with the training necessary for him to perform the essential functions of his
position.

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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b. On January 24, 2014, S1 had him terminated during his probationary period.

2. On December 10, 2013, S1 failed to provide Complainant with a reasonable
accommodation.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). On February 12, 2014, Complainant
request a final decision without a hearing. 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 him to discrimination as alleged.

Complainant was hired as a Probationary Medical Records Technician on September 15, 2013.
He averred that he sustained a back injury in 1992, while on active military duty, and was still
experiencing chronic pain as a residual effect of that injury. IR 116. He identified Post-
Traumatic Stress Disorder and Military Sexual Trauma as additional disabilities. IR 116. He
stated that he was taking medications for his various conditions and that he began using a cane
occasionally in July 2013. IR 116-19.

According to S1, entry level Medical Records Technicians received three weeks of training on
the record-keeping systems that the Agency maintains. New technicians were paired with more
seasoned technicians who served as preceptors. S1 averred that Complainant was assigned
Preceptor 1 during his three-week training and orientation period. She also averred that although
Complainant had completed his initial training successfully, he was unable to grasp the basic
knowledge required to perform his duties and could not work independently despite receiving
training from herself, Preceptor 1, and a second training instructor, Preceptor 2, during his
probationary period. His training had been extended to four months. IR 84, 134-35, 140, 147.

Complainant received a notice dated January 24, 2014 from his fourth-line supervisor, the
Officer-in-Charge of the Naval Branch Health Clinic, informing him that he would be separated
during his probationary period, effective immediately. The notice indicated that the separation
decision was based on Complainant’s inability to perform the essential functions of his Medical
Records Technician position. In particular, the notice stated that despite several training
sessions, Complainant was still unable to demonstrate the basic knowledge required to perform
his duties, and that he continued to make errors performing such tasks as assisting customers at
the door, answering questions over the telephone, registering patients, tasking to providers,
scanning and checking records, and copying records. IR 75. In January of 2014, S1 had
contacted the Office of Human Resources for guidance and was advised that because
Complainant had failed to demonstrate any improvement in his performance over the course of
his probationary period, termination was appropriate. IR 136, 137, 140-41, 144, 156.

Complainant averred that when discussing the need for a reasonable accommodation with S1, he
asked S1 on December 10, 2013, what she believed would help him learn his job and that S1
replied that if necessary, she would assign someone to provide one-to-one training. Complainant
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also stated that he had informed S1 that, because of his back injury, he could not reach for the
telephone to answer it. He acknowledged that S1 had assigned Preceptor 2, and that she had
made arrangements to acquire a new phone. He also stated he offered to provide the necessary
medical documentation to support his request for a reasonable accommodation, but that S1 told
him that she did not need any documentation. IR 122. When asked by the investigator whether
he thought the accommodations were acceptable, Complainant replied that assigning Preceptor 2
to be his trainer was acceptable and he had been provided with a new phone. He also averred
that the new phone broke down after several weeks. IR 122. He acknowledged that he did not
raise the issue of reasonable accommodation with any management official other than S1, and
that there were no witnesses to management’s alleged failure to provide him with a reasonable
accommodation. IR 122-23. According to S1’s affidavit and her contemporaneously prepared
Memorandum, Complainant told S1 that he did not need an accommodation and that he never
offered to provide S1 with medical documentation. IR 82133-35, 144.

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”).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. 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 802 n. 13.

The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tx. Dep’t of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997).

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In the present case, S1 articulated legitimate nondiscriminatory reasons regarding Complainant’s
training and probationary termination. As to training, the preponderant evidence of record
establishes that, far from being denied training, Complainant was given extra training beyond
that normally given to entry-level technicians, including the assignment of an additional
preceptor, the extension of his training period from three weeks to four months, and personal
attention from S1. Regarding his probationary termination, the evidence of record establishes
that S1 sought guidance from the Human Resources offices regarding Complainant’s lack of
improvement in his performance during his probationary period and was advised to initiate a
termination action.

Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in
the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. United States Postal Service, EEOC
Appeal No. 0120060802 (November 20, 2007), request for reconsideration denied, EEOC
Request No. 0520080211 (May 30, 2008). When asked by the investigator why he believed he
was treated differently than other employees in connection with training, Complainant replied
that another Medical Records Technician who has been supervised by S1 had received more one-
on-one training than he did. IR 120. S1 responded that this comparative individual had been
employed prior to Complainant’s arrival, and was a fast learner who worked independently. IR
135. Beyond this, Complainant admitted that he had no evidence to support his contention that
S1 had taken his physical and mental conditions into consideration when deciding how much
training he should receive and when. IR 120. As to his separation, when asked whether he
believed that his medical conditions played a role in S1’s decision to initiate a probationary
termination, he replied that he did. IR 123-25. Beyond his own assertion, however,
Complainant has not presented affidavits, declarations, or unsworn statements from witnesses
other than himself nor documents which contradict the explanations provided by S1 for her
actions or which otherwise call into question her veracity. We therefore agree with the Agency
that Complainant has not sustained his burden of proof on the question of disparate treatment.

We now turn to Complainant’s reasonable accommodation claim. The Agency is required to
reasonably accommodate the known limitations of a qualified individual with a disability,
unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R.
§§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No.
915.002 (Oct. 17. 2002); Barney G. v. Dept. of Agriculture, EEOC Appeal No. 0120120400
(Dec. 3, 2015). In this case, the record establishes that Complainant neither advised S1 that he
needed an accommodation nor provided any medical documentation in support of a request for
an accommodation. As to the telephone, Preceptor 1 averred that she was the one who ordered
the new phone, and that the new phone worked fine and would hold a charge for three hours. IR
144. We therefore find that the Agency did not deny Complainant a reasonable accommodation.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that he was discriminated
against as alleged.

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

July 6, 2017
Date