[Redacted], Brandon E., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020003047 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brandon E.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020003047 Hearing No. 480-2018-00025X Agency No. DON-16-62204-03777 DECISION On April 8, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 9, 2020 final decision concerning his 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. At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS- 0083-07, at the Marine Corps Logistics Base in Barstow, California. On January 3, 2017, Complainant filed a formal complaint in which he alleged that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race/national origin (Hispanic)2, color (Brown) disability (knee and back conditions, stress) and reprisal (prior protected EEO activity) when: 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. 2 To the extent that Complainant is claiming “Hispanic” as a race, the Commission has consistently stated that it considers “Hispanic” a basis of national origin discrimination not race. Leora R. v. U. S. Postal Serv., EEOC Appeal No. 2020003139 n.2 (March 29, 2021); King W. v. U.S. Postal Serv., EEOC Appeal No. 0120143148 n. 2 (Feb. 25, 2016). 2020003047 2 a. On September 20, 2016, a Supervisory Police Officer (SPO), while driving a government vehicle on the firing range side road almost ran Complainant over, causing him to injure his knees while getting out of the way of the vehicle; b. On December 5, 2016, Complainant was marked Absent without Leave (AWOL) by the Operations Officer (OO) for eight hours, despite being at work until 1:30 p.m. before leaving for a doctor’s appointment; and c. On April 17, 2017, the Chief of Police (CP) denied Complainant’s request for a reasonable accommodation. At the conclusion of the ensuing investigation, the Agency transmitted a copy of the investigative report and notified Complainant of his right to request a hearing before an EEOC Administrative Judge (AJ) or to receive a final agency decision without a hearing. Complainant initially requested a hearing but subsequently withdrew his hearing request. As a result, the AJ remanded the matter for a final agency decision. The Agency issued a decision on March 9, 2020, finding that Complainant failed to establish discrimination or reprisal with respect to any of the incidents listed above. On appeal, Complainant challenges the Agency’s final decision only with respect to incident (c). 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”). 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; Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (December 3, 2015). In order to establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). Assuming that Complainant is a qualified individual with a disability, we find support for the Agency’s finding that Agency management did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. 2020003047 3 Record evidence reveals that Complainant had requested reassignment to a desk job on January 23, 2017. The medical documentation he submitted in support of his request indicated that he was under several restrictions but that those restrictions would be lifted by April 5, 2017. Based upon the medical documentation he received, the CP denied Complainant’s request on April 4, 2017. Accordingly, we find that the Agency correctly concluded that Complainant's medical condition was transitory, and therefore not a qualifying disability entitling him to a reasonable accommodation. See Idell M. v. Dep't of Agric., EEOC Appeal No. 0120140792 (Aug. 4, 2016) (finding complainant was not entitled to a reasonable accommodation when recovering from surgery on her left foot after all medical documentation indicated that the condition was temporary); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120122572 (Dec. 4, 2014) (finding no evidence of qualifying disability within the meaning of the ADAAA when Complainant had a leg injury that required two surgeries and her recuperation periods were no more than two to four weeks). Complainant underwent two more evaluations which had the effect of pushing back clearance to return to work full time from April to July. Management subsequently requested a conference with Complainant’s doctor to clarify Complainant’s condition, however, and approved 174 hours of advanced sick leave followed by leave without pay in the meantime. Before the conference could take place, however, Complainant accepted a non-police job at another installation on July 9, 2017, with no further medical information being provided. Under these circumstances, we find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Beyond his bare assertions on appeal, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents containing medical or other information which contradict or undercut the CP’s explanation for denying Complainant’s request for a reasonable accommodation or which cast doubt upon the CP’s veracity as a witness. Thus, to the extent Complainant claims that he was subjected to disparate treatment (apart from accommodation), the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that Complainant was denied a reasonable accommodation, as alleged. 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 2020003047 4 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. 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. 2020003047 5 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 June 7, 2021 Date