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

Equal Employment Opportunity Commission

Apr 18, 2022

Appeal No. 2020005174 (E.E.O.C. Apr. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernetta B.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020005174 Hearing No. 570-2018-00563X Agency No. DON-17-00012-01489 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 28, 2020 final decision concerning her equal employment opportunity (EEO) 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, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist, GS-0260-13, with the Assistant for Administration (DON/AA), EEO Office, at the Pentagon in Washington, D.C. On June 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African- American), sex (female), disability (Chronic Psychiatric Disorder/Disability, Type 2 Diabetes, 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. 2020005174 2 and Coronary Artery Disease), and reprisal (prior protected EEO activity) when: (a) on January 30, 2017, Complainant’s second-line supervisor (S2) (White, female, disability) issued her a Notice of Proposed Suspension; (b) on or about February 27, 2017, she became aware that S2 did not select her as Acting Command Deputy EEO Officer (CDEEOO) despite her status as the senior specialist; (c) on March 1, 2017, her third-line supervisor (S3) (White, male, no disability) issued her a Notice of Decision on Proposed Suspension, suspending her without pay from March 6, 2017 through March 10, 2017; (d) on March 2, 2017, S2 suspended her Navy Marine Corps Intranet (NMCI) access despite her suspension not being effected until March 6, 2017; (e) on April 3, 2017, S2 suspended the telework portion of her previously approved reasonable accommodation; (f) on April 24, 2017, S2 denied her request to attend the Office of Personnel Management Effective Writing in the Federal Government training course; (g) on April 24, 2017, S2 denied her request to attend training at the Institute of Diversity to obtain her Certified Diversity Professional Credential; (h) in or about July 2016, S2 denied her request to attend the Examining Conflicts in Employment Law (EXCEL) Annual Conference; (i) on January 18, 2017, during her out processing meeting, S2 stated that she (Complainant) did not deserve her FY16 performance appraisal rating, that she should not have been selected to provide training for Space and Naval Warfare Systems Command in San Diego, and that she (S2) was not pleased with her work; and (j) on March 30, 2017, S2 refused to discuss telework as part of her approved reasonable accommodation while she was on sick leave. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ subsequently dismissed the hearing request and remanded the complaint to the Agency. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that Agency management subjected her to discrimination, reprisal, or a hostile work environment as alleged. FACTUAL BACKGROUND Complainant was diagnosed with Chronic Psychiatric Disorder/Disability around May 2001; Type 2 Diabetes around 2014; and Coronary Artery Disease around March 14, 2017. Complainant takes medication for these permanent medical conditions. The medications cause major side effects. Complainant’s first-line supervisor (S1) was aware of Complainant’s medical conditions and S2 became aware of her medical conditions around July 2016. In addition, Complainant was involved with the process of a complaint of discrimination involving S2 as the responsible management official between 2014 and August/September 2016. Complainant stated that she told S1 and S3 about S2 but has not provided a further explanation. Suspension (Claims a and c) S2 explained that Complainant was suspended because she failed to follow timekeeping procedures, which Complainant verbally admitted to doing. The Supervisory Human Resources Specialist (SHRS) (Black, male, no disability), testified he provided advice to management with 2020005174 3 respect to the proposed suspension and the level of documentation needed to support the proposed suspension. SHRS asserted management ultimately made the decision they felt was the least severe to correct Complainant’s misconduct. While Complainant claimed that management had a “de facto” practice of allowing staff to take days off in lieu of compensatory time, SHRS stated he was not aware of any management official allowing this practice. Non-Selection (Claim b) S2 affirmed that no one was given the title of Acting CDEEOO when S1 was placed on administrative leave. She explained the deputy position was vacant and there were two DON/AA funded people left in the EEO office--Complainant and another employee (CW2). S2 asserted she knew Complainant had another job offer pending and that Complainant’s proposed suspension was pending adjudication. S2 stated that Complainant also claimed she did not perform complaint processing and, therefore, she designated CW2 as the person to watch the workload and report to her on the status of complaints and reasonable accommodations. She averred CW2 was not given the title of Acting CDEEOO and no one was formally detailed to fill the position. NMCI Access Suspended (Claim d) S2 testified on March 1, 2017 when Complainant was given her suspension letter, from Complainant’s NMCI account, she collapsed in the office and was taken by ambulance to the hospital. S2 also affirmed that on March 2, 2017, she told Complainant not to perform work while on sick leave since there was already an issue with Complainant not following proper timekeeping and attendance procedures, and regularly working extra hours without prior authorization, and she did not want Complainant performing work while she was on leave recuperating. Further, S2 asserted that Complainant continued to send her emails. She explained the only way she could ensure Complainant was not performing work was to temporarily turn off her access. S2 also stated that she did not want Complainant to later claim she was working and use her NCMI emails as validation of that claim. S2 testified Complainant did not return to work after her suspension period. On March 13, 2017, while still out sick, Complainant emailed S2 two times demanding access to NMCI so she could work on her EEO complaint and monitor her job offer from another agency. She averred after getting Complainant to discuss the circumstances with her as to why she had not given out her personal email so she could be contacted, she restored Complainant’s access on March 20, 2017. S3 testified he informed Complainant that the reason for the suspension of the account was to prevent her from working during a period of leave, they wanted her to use her leave for the purposes intended, and they would restore access as soon as she was able to return to the office. Telework Denied (Claims e and j) After collapsing at work, Complainant was diagnosed with Coronary Artery disease and underwent a cardiac cauterization (stent put in artery) on March 17, 2017. 2020005174 4 Complainant was absent from work recovering from this procedure until April 24, 2017. In the interim, Complainant had been suspended for misconduct associated with allegedly teleworking while on leave in Atlanta. On March 20, 28, and 30, 2017, Complainant asked to start teleworking part time while recovering on sick leave. S2 did not approve Complainant’s request to telework while she was out on leave recovering from the cardiac procedure because Agency guidance on teleworking did not allow for teleworking for employees who have been issued disciplinary action within the last 12 months. At that time, Complainant had a 2014 reasonable accommodation (RA) for a chronic psychiatric disability and/or cognitive disability of not being able to maintain focus/concentration. Under Complainant’s 2014 RA, she was approved for ad hoc telework to deal with the effects of her psychiatric medication and her doctor’s appointments for her psychiatric condition, only with prior approval of her supervisor. S2 asserted that the ad hoc telework portion of Complainant’s 2014 reasonable accommodation was inapplicable during her sick leave period pertaining to her cardiac procedure from March 10, 2017 to April 24, 2017. On April 3, 2017, the ad hoc telework portion of Complainant’s RA was suspended until she returned on April 24, 2017 based on indications that she was going to revise her RA upon her return to work. However, she never submitted a request to revise her RA or new medical documentation before her departure from the Agency on May 27, 2017. Denial of Training (Claims f, g and h) S2 asserted that she did not deny Complainant’s request to attend the EXCEL conference and explained that in late spring 2016, S1 requested that six employees (i.e., most of his staff) attend a conference in San Francisco and the same for a conference in New Orleans. S2 stated that she explained to S1 that with conference attendance guidelines and with such a small staff, his request was excessive but he could pick two people to go to each conference and they should be two different people so that training was spread out among the staff. In addition, S2 asserted that she decided to send Complainant and a coworker (CW1) (Black, female, medical condition unknown, EEO activity not identified) to the San Francisco event and she gave verbal authorization for them to attend. S2 further explained that Complainant’s paperwork (SF182) was not routed in a timely manner for her approval and thus neither Complainant nor CW1 was registered to attend the conference. S2 noted that it is an employee’s responsibility if they want to attend training to make sure they have all the proper documentation/approvals. With respect to the Effective Writing in the Federal Government training course, S2 affirmed that she told Complainant she should find a less expensive option and something for less than five days as she is a GS-13 and at her grade level she should just need to hone her skills. S2 also stated that no one else requested to attend the course. S2 added that in early February 2017, she questioned S1 on the timing and cost of the certification program at the Institute of Diversity Training as Complainant had received a tentative job offer to another command and she questioned paying for a certification program for someone who was leaving. 2020005174 5 She averred she also asked some questions regarding the program and whether there was a way they could pay for part of the program for the period-of-time Complainant was their employee. According to S2, these questions were never answered. S2 also stated that actions were initiated to remove S1 for various reasons and once S1 left, Complainant never asked her about the course and/or the status of her request. S2 asserted that Complainant was disciplined for other reasons and was out for some time on medical leave. When Complainant returned, she received her final job offer for the pending position and departed their command. No one else requested to attend this course. 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”). Hostile Work Environment To establish a hostile work environment claim, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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 Agency. 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 (Mar. 8, 1994). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Therefore, 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 protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. 2020005174 6 Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, Complainant was suspended because she failed to follow the Agency’s timekeeping procedures. Regarding the Acting CDEEO position, no one was formally detailed into the position and the position remained vacant. Complainant’s NMCI access was temporarily suspended to ensure that Complainant performed no work while on sick leave. Management suspended Complainant’s telework privileges because, according to Agency policy, employees with disciplinary actions were ineligible. In addition, Complainant had indicated that she intended to revise her RA request. With respect to training, Agency management decided to send two different people to different conferences to spread out training among the staff. Complainant failed to timely submit SF182 to attend the conference. As to the Effective Writing course, management asked Complainant to find a less expensive option to hone her skills. In addition, S2 questioned the timing and cost of the Institute of Diversity Training certification program because, among other things, Complainant had received a tentative job offer elsewhere. The Commission finds that there is no evidence demonstrating that Agency officials were motivated by discriminatory or retaliatory animus. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence demonstrating that the Agency's explanation for its actions was pretext for discrimination or reprisal. Accordingly, we find that Complainant has not shown that she was subjected to discrimination, reprisal, or a hostile work environment. Denial of Reasonable Accommodation Under the Commission's regulations, an Agency is required to make reasonable accommodation 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. A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (Oct. 17, 2002).When an individual's disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his or her disability and functional limitations. Id. at Question 6. The employer is entitled to know that the individual has a covered disability for which she needs a reasonable accommodation Id. Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has a disability within the meaning of the Rehabilitation Act and that the disability necessitates a reasonable accommodation. Id. If an individual's disability or need for accommodation is not obvious, and she refuses to provide the reasonable documentation requested by the employer, then she is not entitled to reasonable accommodation. Id. 2020005174 7 The preponderance of the evidence does not establish that Complainant’s request for telework during the relevant time frame was related to her initial accommodated condition. The record reveals that Complainant was at home recuperating from a condition unrelated to the disability for which she was being accommodated. Furthermore, Complainant’s submitted medical documentation indicated that she was not to return to work. Moreover, Complainant indicated that she would be submitting an updated reasonable accommodation request; however, she failed to do so. Accordingly, the record does not support finding that the Agency denied Complainant reasonable accommodation in violation of the Rehabilitation Act. CONCLUSION Based on a thorough review of the record, we AFFIRM the final agency decision. 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). 2020005174 8 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. 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 April 18, 2022 Date