[Redacted], Alena C., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Oct 26, 2021

Appeal No. 2020003564 (E.E.O.C. Oct. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alena C.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003564 Hearing No. 410-2019-00546X Agency No. 18-68084-01202 DECISION On May 23, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 12, 2020 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked as a Dental Hygienist, GS-0682-07, at the Agency’s Dental Recall, Naval Health Clinic, Charleston, South Carolina. S1 (Hispanic, brown, born 1980) was Complainant’s first level supervisor until July 2018. S2 (Caucasian, white, born 1985) was Complainant’s first level supervisor beginning in August 2018. The Lieutenant Commander (Hispanic, brown, born 1977) was Complainant’s second level supervisor at all relevant times. 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. 2020003564 2 On December 12, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African American), color (brown), disability, age (born 1968), and in reprisal for prior protected activity when: 1. On or about June 20, 2018, her reasonable accommodation request to be scheduled four prophylaxis patients and three Registered Dental Hygienist (RGH) prophylaxis patients was not granted. 2. She was subjected to ongoing harassment/a hostile work environment that included the denial of reasonable accommodation referenced above and further included the following allegations: a. On July 11, 2018, S1 treated Complainant differently due to a reasonable accommodation request, to sign out her own hand pieces on the accountability sheet; b. On July 19, 2018, S1 questioned Complainant regarding her disabilities during a pre-action investigation meeting; c. On August 20, 2018, S1 issued a letter of proposed suspension to Complainant; d. On September 6, 2018, the Lieutenant Commander issued a 10-day suspension to Complainant; e. On September 17, 2018, the Lieutenant Commander, in the presence of Complainant’s supervisor (S2), told Complainant that he felt her mistakes were due to her anxiety; and f. From June 2018 through September 2018, the Sterilization Processing Technician intentionally placed items in Complainant’s cassettes and then falsely accused Complainant of leaving the items in her cassettes. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ subsequently issued a decision by summary judgment finding no discrimination in favor of the Agency. The Agency issued its final order adopting the AJ’s finding of no discrimination. The instant appeal followed. 2020003564 3 ANALYSIS AND FINDINGS 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 an individual with a disability. In June 2017, Agency management, at her request, approved the following accommodations for Complainant based on her claimed disabilities of osteoarthritis in the neck and Generalized Anxiety Disorder: • provide needed equipment and workstation to assist in bringing Complainant’s computer to a higher level; • allow a revised registered dental hygienist schedule of seven patients per day, of which at least three are prophylaxis (less complex) patients and up to four Registered Dental Hygienist (RGH) prophylaxis (more complex) patients; and • work schedule that starts at 6:45 a.m. and ends at 3:30 p.m. Monday through Thursday and 2:15 p.m. on Friday. In the instant complaint, Complainant claimed that on or about June 20, 2018, the Lieutenant Commander denied her request that one of her accommodations be adjusted so that she was scheduled four prophylaxis (less complex) patients and three RDH prophylaxis (more complex) patients per day. Complainant requested the revised accommodation because she had developed carpal tunnel symptoms. The evidence shows that the Lieutenant Commander responded to Complainant’s request by asking her to provide medical documentation that justifies the modification. On October 16, 2018, Complainant provided the requested medical documentation which advised that Complainant should continue to be scheduled with a maximum of seven patients per day, three prophylaxis and four RDH patients and that all patients be scheduled at one-hour increments. This was the same as the accommodation she had already been granted and was working under. Therefore, the Lieutenant Commander found no justification in her medical documentation to amend her provided accommodation. In November 2018, Complainant additionally requested a change in the equipment in her treatment room as an accommodation for her carpal tunnel. The record shows the requested equipment was installed in a little over a week. In sum, based on the undisputed evidence of record, the AJ correctly determined that Agency management had accommodated Complainant within her documented medical restrictions pursuant to its obligations under the Rehabilitation Act. 2020003564 4 Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case 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, non-discriminatory 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. The Lieutenant Commander stated that prior to leaving the unit, S1 had issued Complainant a notice of proposed suspension for several incidents of misconduct, including leaving her wet, dirty socks in her treatment room; failing to utilize handpieces; disrupting patient care; accusing a contractor employee of always coughing in front of her; and checking out a hand- piece that was later found in her treatment room. S1 stated that Complainant also received several complaints from patients regarding her performance and quality of care. The record contains a copy of the September 6, 2018 10-Day Suspension, which the Lieutenant Commander finalized. The Lieutenant Commander indicated he had considered Complainant’s response to the proposed suspension, but found it was adequately supported and justified the suspension. He noted that Complainant he had been previously counseled on behavior and performance. However, he said Complainant’s behavior was “repetitive in nature and creates a toxic environment in this clinic and has a negative impact to morale. This has led management and leadership to question [her] ability to perform [her] duties effectively and efficiently.” 2020003564 5 The record evidence supports the AJ’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered for the suspension were a pretext designed to mask a discriminatory or retaliatory motivation. Harassment/Hostile Work Environment To prove her harassment/hostile work environment 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, x, y or z. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). To the extent that Complainant included the denial of reasonable accommodation and the suspension as part of her hostile work environment claim, these issues are precluded based on our findings, detailed above, that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). With regard to remaining allegations proffered to support her hostile work environment claim, Complainant claimed that S1 denied her request to sign out her own handpieces on the accountability sheet. However, the evidence shows that S1 initially Complainant to log out her own handpiece instrumentation as an exception to the normal policy. However, that changed after Complainant left for home on an identified date and never returned the sterile handpiece instrumentation to the sterile processing area. Lieutenant Commander freely admitted that when counseling Complainant about some of her performance errors, he did state that he thought her anxiety contributed to the mistakes. There is no evidence, however, that this statement exhibited any animus towards Complainant or her disabilities. Regarding the claim that from June 2018 through September 2018, the Sterilization Processing Technician (Technician) intentionally placed items in Complainant’s cassettes and then falsely accused Complainant of leaving the items in her cassettes, the Lieutenant Commander stated that he was aware the Technician approached Complainant about a floss she had left in her cassette. The Lieutenant Commander explained that the cassette was supposed to be completely empty and clear of any debris before being sent to the Sterile Processing Area. The record reflects that Complainant had forgotten to remove floss and the Technician approached her about the matter. In sum, the evidence fully supports the AJ’s determination that there was simply no evidence that discriminatory or retaliatory animus played a role in the disputed actions. 2020003564 6 CONCLUSION After careful consideration of the record and the arguments presented on appeal, we AFFIRM the Agency’s final order, implementing the AJ’s summary judgment decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020003564 7 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 October 26, 2021 Date