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

Equal Employment Opportunity Commission

Jun 21, 2021

Appeal No. 2020000270 (E.E.O.C. Jun. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bula P.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020000270 Hearing No. 520-2018-00386X Agency No. DON 17-61115-00131 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 December 2, 2019, final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Lower Base and Food Services Manager, NF-1101-03, at the Agency’s Naval Submarine Base (New London), NEXCOM/Navy Exchange in Groton, Connecticut. On January 27, 2017, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her and subjected her to a hostile work environment based on sex (female), 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. 2020000270 2 disability (Major Depression and Post Traumatic Stress Disorder), age (63), and in reprisal for prior protected EEO activity2 when: 1. on or about August 2015, the General Manager did not select Complainant for the Uniform Shop Manager position at the New London Submarine Base; 2. on or about June 2016, management officials reduced Complainant’s rotational training from six weeks to three weeks; 3. on or about July 2016, management refused to support Complainant’s efforts to discipline subordinates; 4. on or about July 2016, management allowed Complainant to work outside parameters of her medical restrictions (no more than 35 hours); 5. on July 25, 2016, the General Manager attributed Complainant’s poor performance to several store deficiencies; and 6. on July 26, 2016, Complainant resigned her position as Lower Base Manager. After its investigation into the accepted claims, 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 requested a hearing. On September 13, 2019, the Agency issued motion for sanctions for Complainant’s failure to appear for the pre-hearing conference and failure to timely respond to the Agency’s discovery requests. After receiving Complainant’s objection and an additional response from the Agency, the AJ granted the Agency’s motion, dismissed Complainant’s hearing request, and remanded the complaint to the Agency for issuance of a final decision. On December 2, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.3 2 Complainant testified that she filed a prior complaint in January 2015 against her second level supervisor (S2), which she later withdrew. 3 The Agency determined that claims 1 and 2 were discrete acts and dismissed these claims, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. However, the Agency considered these claims as background information for Complainant’s hostile work environment claim. Complainant does not dispute the dismissal of these claim on appeal. Therefore, we only include these claims in our analysis of Complainant’s hostile work environment claim. 2020000270 3 The instant appeal followed.4 On appeal, Complainant, through counsel, argues that the AJ improperly dismissed the formal complaint and requests that Commission remand the complaint for a hearing. Complainant further argues that the Agency failed to provide her with a reasonable accommodation and subjected her to a hostile work environment which resulted in a constructive discharge. ANALYSIS AND FINDINGS Preliminary Matter - Hearing Request As an initial matter, we address Complainant’s request for an administrative hearing. The record indicates that on September 17, 2019, the AJ dismissed Complainant’s hearing request. The AJ explained, in the dismissal, that she issued an Acknowledgement Order (AO), dated May 23, 2019, requesting that the parties call in for an initial telephone pre-hearing conference on July 17, 2019. However, Complainant failed to appear to the July 17, 2019 pre-hearing conference although her attorney was present. According to the AJ, Complainant’s attorney did not know why Complainant did not call in and attempted to reach her but received no response. Thereafter, the AJ issued a pre-hearing conference order (PHC Order) establishing the timeline for discovery as well as the deadlines for responses. As a consequence of Complainant’s failure to appear at the pre-hearing conference, the AJ ruled that she would not be permitted to apply to change any of the AJ’s scheduling. The order informed the parties that failure to comply with the AJ’s orders could result in sanctions, pursuant to 29 C.F.R. § 1614.109(f)(3), including issuance of a decision fully or partially favorable of the opposing party. The AJ found that Complainant failed to submit her responses to the Agency’s interrogatories and request for production of documents by the established deadline of September 6, 2019. After the Agency inquired about the delay on September 10, 2019, Complainant, through counsel, responded on September 12, 2019, that the responses would be filed the next business day, September 13, 2019. However, when Complainant still failed to submit her responses, the Agency filed a motion to compel or in the alternative motion for sanctions, arguing that the Agency was prejudiced by Complainant’s failure to comply with the PHC Order timeline. Complainant subsequently filed her responses on September 16, 2019. The AJ determined that Complainant failed to provide good cause her non-compliance. 4 On October 22, 2019, the Agency initially requested that the Commission dismiss Complainant’s appeal for lack of jurisdiction. Specifically, the Agency reasoned that Complainant filed her appeal on October 10, 2019. However, the Agency had not issued a final decision as directed by the AJ, and therefore, her appeal was not ripe before the Commission. We note that the Agency subsequently issued a final decision on December 2, 2019, and the Commission has jurisdiction to review this appeal. 2020000270 4 The AJ acknowledged that Complainant explained that she had been in a rehabilitation facility following a March 2019 injury. The AJ noted, however, that Complainant had never mentioned her medical condition prior to this time and provided no medical documentation or other evidence supporting her contention that she was unable to respond to the Agency’s discovery requests by the AJ’s established deadline. On appeal, Complainant argues that the AJ improperly dismissed the hearing request. However, our review of the record reflects that Complainant failed to comply with both of the AJ’s orders. On appeal, Complainant does not dispute that she failed to appear at the pre-hearing conference, nor does she dispute that her responses were untimely. Additionally, Complainant has still not provided medical documentation to support her unavailability during the period she was required to timely respond to the Agency’s requests. Therefore, we find that the AJ properly dismissed Complainant’s hearing request for failure to comply with the AJ’s orders. Thus, we deny Complainant’s request for a hearing on appeal. Merits of the Claims at Issue Reasonable Accommodation (Claim 4) 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). 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 him with a reasonable accommodation. See 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). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. The record reflects that Complainant is a qualified individual with a disability. Complainant testified that she was first diagnosed with Major Depressive Disorder and PTSD in 1986. Complainant explained that her conditions are permanent, she has been previously hospitalized for these conditions, and she was on Social Security Disability Income through 2003. While she has been able to sustain employment since 2003, Complainant explained that she has periodic episodic flareups from her conditions triggered by stress, oppression, and physical and emotional bullying. Complainant indicated that her flareups consist of complete physical and mental shut down, and an inability to concentrate, focus, work, communicate, or interact with others outside of family and friends. Complainant noted that her flareups are treated with medication and she has a psychiatrist. Complainant noted that her flareups were more frequent after she filed an EEO complaint against S2 in 2015. 2020000270 5 Although Complainant testified that she was able to perform the essential functions of her position, she said that she requested reasonable accommodations from November 2015 through July 2016, which consisted of a leave of absence and limited hours to return to work. Complainant acknowledged that these requests were approved and provided, but said that the accommodations were not effective. Complainant explained that after she returned from her medical leave of absence in May 2016, she was not returned to her original position even though it was available. Instead, she was assigned to the Lower Base retail store, a new and different position, which was also a stressful environment. Specifically, Complainant asserted that in this new position, she was working additional hours outside of her work restriction. Complainant testified that her physician noted that she was not to work full-time until September 1, 2016. However, Complainant stated that she was expected to perform sale associate duties as well as her managerial responsibilities while working in the Lower Base and this workload resulted in her working beyond her medical restrictions. As a result, Complainant indicated that she was unable to complete her assignments in seven hours, and instead, had to work ten hours to complete her duties. Our review of the record, as further explained below, supports that the Agency did not require Complainant to work outside of her medical restrictions, and therefore, did not violate the Rehabilitation Act. The record indicates that on May 4, 2016, Complainant’s physician submitted a proposed return to work schedule for Complainant. The letter included a proposed start date of May 23, 2016, and reflects that Complainant’s work hours would gradually increase over a thirteen-week period until she reached working five days a week up to 40 hours. The letter also noted that Complainant had no work restrictions aside from her limited work schedule. The record also includes a July 20, 2016 physician’s note indicating that Complainant could work up a maximum of 32-35 hours a week with no restrictions. Although Complainant asserted that she had informed management of her medical conditions as early as February 2016, the record reflects that the May and July 2016 physician notes in the record omit any discussion or identification of Complainant’s medical condition.5 Consequently, Complainant’s first level supervisor (S1), S2, and the Human Resources Associate (HR Associate) indicated that they were unaware of what medical conditions Complainant had that necessitated her initial leave of absence from work as well as her need for a limited work schedule. With respect to Complainant’s limited work schedule, our review of the record reflects that the Agency provided Complainant this accommodation. 5 The record also includes a December 2, 2015 physician note requesting that Complainant be granted medical leave because she is unable to focus, is easily overwhelmed, and is having recurrent anxiety attacks that have prevented her from performing the essential functions of her job. This physician note also omits any diagnosis or condition Complainant had that caused her anxiety attacks. 2020000270 6 S1, S2, and the HR Associate explained Complainant wrote her own schedule to ensure compliance with her physician’s orders regarding her limited work schedule. Consequently, Complainant had full control over her schedule without any interference from management. Additionally, the HR Associate explained that Complainant had the ability to flex her hours as needed. The HR Associate acknowledged that one day Complainant emailed her at 6:30 pm explaining that she was still at work even though the store closed at 4:00 pm. The HR Associate explained that she did not receive Complainant’s email until the following day. However, she informed Complainant that she could leave work early that day to offset the additional hours she worked the evening before. Additionally, neither S1 nor S2 indicated that Complainant was assigned extra work to complete. S1 reiterated that any hours worked that were different from Complainant’s planned schedule or that exceeded her medical restrictions were conducted by Complainant’s own merit. S1 also reiterated that Complainant notified management of the extra hours she worked after she had completed them. Therefore, there is no evidence to corroborate Complainant’s claim that the Agency required her to work beyond her limited work hours. Therefore, for the reasons stated above, we find that Complainant has failed to demonstrate that the Agency violated the Rehabilitation Act because the evidence supports that Complainant was not required to work beyond her limited work schedule. We also note that Complainant claimed that she was denied a reasonable accommodation when management failed to assign her to her original position after she returned to the Agency and when management failed to provide her training.6 However, the record reflects that Complainant’s limited work schedule was the only reasonable accommodation that she requested and that accommodation is the only accommodation at issue. Nevertheless, the record fails to reflect that management’s decision to assign Complainant to the Lower Base retail store instead of her prior store, the Main selling store, resulted from retaliatory or discriminatory animus. Complainant requested to return to oversee only food contracts and food operations. However, S2 testified that these duties were not sufficient to warrant a full-time manager’s oversight and declined the request. The record further reflects that Complainant’s prior position at the Main selling location was open seven days per week and closed at 7 pm. However, the Lower Base retail store was only open Monday through Friday and closed at 4 pm which S2 believed would have been a less stressful workplace for Complainant than the Main selling location. With respect to Complainant’s allegation that she was denied training, we address this specific claim in our discussion regarding Complainant’s allegation that she was subjected to discriminatory harassment. 6 With respect to Complainant’s denied training, we address that claim further in our decision below. 2020000270 7 Discriminatory Harassment - (Claims 1 - 3, and 5) To establish a claim of discriminatory environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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, her sex, disability, age, and in reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our review of the record reflects that the Agency properly determined that Complainant was not subjected to harassment as alleged. Non-selection (Claim 1) Complainant testified that S2 informed her that the Uniform Manager position would be combined with the Services Manager position and that she would not need to interview for the position. However, Complainant indicated that while she was on a two-week vacation, S2 posted the vacancy, which closed the day after she returned to work. Complainant further asserted that S2 downgraded the position because Agency policy prevented him from combining retail positions with service positions, and consequently, the now downgraded position did not warrant the salary he had previously told her. Complainant further stated that S2 encouraged her to withdraw her application because taking a downgraded position would not be good for her career. Complainant rescinded her application. Nevertheless, Complainant asserted that she was more qualified for the position than the Selectee (female, younger than Complainant, no disability, and no prior EEO activity) because the Selectee had no uniform experience or general sales experience which Complainant had. Additionally, Complainant stated that S2’s reasoning for downgrading the position (not combining service and retail positions) was unfounded because S2 assigned the Selectee portions of Complainant’s prior position (a service position) along with her retail position duties. S2 and the HR Associate confirmed that Complainant was not interviewed for the position because she withdrew her application. 2020000270 8 Reduced Training (Claim 2) Complainant explained that while she was qualified to complete the duties in her reassignment to the Lower Base, this position was new and different from her prior position which necessitated her need for training. Complainant asserted that S2 informed her that she would receive six weeks of training. However, Complainant explained that she received some but not all the six weeks of training S2 agreed to provide. S2 clarified that Complainant was not offered traditional training. Rather, Complainant was offered “shadowing” during her transition to the Lower Base. S2 noted that Complainant was a “seasoned retail manager” who had been out on prolonged sick leave, and he believed that shadowing a few management counterparts for a few weeks would help Complainant make a transition into her position. Because an associate unexpectedly resigned at the Lower Base, both S1 and S2 explained that Complainant’s shadowing was curtailed by three weeks. S1 indicated that with the associate resigning, there were only three associates at the Lower Base which created a coverage issues. Consequently, Complainant started at the Lower Base sooner than anticipated and her shadowing at another location did not occur due to the needs of the Agency. S1 indicated that the training (opening/closing procedures) Complainant would have received at the other store location was specific to that store and therefore, was non-essential to her responsibilities performed at the Lower Base. Additionally, both S1 and S2 reiterated that Complainant was knowledgeable in the area she worked, and none of the “training” she received was new to her as she had over five years of supervising and managing operations and associates. Notably, the HR Associate stated that Complainant never indicated that she was upset that her “training” was cut short or that she left disadvantaged when she was reassigned to the Lower Base store. Lack of Support for Disciplinary Actions (Claim 3) Complainant testified that while she was working in the lower base, she supervised two subordinate employees who she asserts had a history of performance problems. Complainant explained that her subordinates did not do their job, would not listen to her, and would yell and scream at her when she asked them to perform tasks. Complainant also indicated that she suspected that the subordinates were engaging in theft. Although Complainant addressed these issues with S1 and S2 and requested that one or both employees be transferred, Complainant stated neither of these actions were taken. Complainant stated that she also requested a flex associate to assist at the store, but management also denied this request. S2 acknowledged that there were personality conflicts between Complainant and her two subordinates and indicated that the subordinates felt that Complainant did not help them operate the store in an efficient manner. S2 asserted that Complainant attempted to have these employees terminated, but her allegations that the employees engaged in theft were unfounded. S2 explained that Loss and Prevention found no evidence of theft and a September 2016 physical inventory at the Lower Base revealed an inventory overage, not loss. 2020000270 9 Additionally, S1 also noted that he and S2 evaluated and addressed every concern Complainant presented regarding her subordinates, but many of her accusations lacked validation or documentation. S1 further indicated that Complainant, HR, and the two subordinates had a meeting during the first week of July 2016 and all matters were resolved by July 11, 2016. The HR Associate confirmed that the employees had concerns that Complainant was consistently late during the morning, which was a busy time at the store. As a compromise, the HR Associate explained that Complainant agreed to schedule the employees to work in the morning and she would cover closing the store. By July 12, 2016, S1 indicated that Complainant emailed him and notified him that things were going well and referenced “good team building.” As a result, S1 indicated that he believed that her interaction with her subordinates was improving as Complainant did not report any insubordination issues before July 25, 2016. Poor Performance Attributed to Store Deficiencies (Claim 5) Complainant stated that she requested a meeting with S1 to discuss S1’s expectations of her while working in the Lower Base. During this meeting, Complainant explained that S1 indicated that the store was performing poorly, and Complainant believed that S1 was blaming her for the store’s performance. However, S2 denied stating that Complainant was performing poorly. S2 noted that Complainant was not verbally counseled or issued any written counseling for performance issues. S2 explained that he was confused by Complainant’s assertions because she performed her duties in an acceptable manner, and her store location was not deficient as it had a profit increase in July 2016. Considering these claims, even if true, Complainant has not shown evidence that considerations of her sex, disability, age, or retaliatory animus motivated management’s actions toward Complainant. The record supports that Complainant voluntarily withdrew her application for the Uniform Manager position and was therefore not considered for an interview or selection. The record further supports that due to Agency needs, management ended Complainant’s training before six weeks. However, the record indicates that the training was not new information for Complainant as she had years of experience supervising and managing operations and associates. Additionally, the record supports that management actively investigated Complainant’s allegations of improper conduct by her subordinates, but the investigations determined that her claims against her employees were unsubstantiated. Lastly, there is no evidence that S2 issued a verbal or written counseling regarding Complainant’s work performance as she had performed her duties in an acceptable manner. Beyond her bare assertions, there is no evidence that the disputed actions were motivated in any way by Complainant’s sex, disability, age, and in reprisal for prior protected EEO activity. As such, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2020000270 10 Constructive Discharge: (Claim 6) The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). Upon review, we find that Complainant failed to show that her working conditions were so intolerable that she was forced to resign. We agree with the Agency in concluding that, as described above, Complainant has not demonstrated that the alleged conduct constituted discriminatory treatment and we find that Complainant has failed to establish that any of the alleged conduct, either singly or collectively, was sufficiently severe or pervasive to rise to the level of a hostile work environment. We therefore conclude that Complainant did not establish that her resignation constituted a constructive discharge. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2020000270 11 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. 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. 2020000270 12 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 21, 2021 Date