[Redacted], Dovie W., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 13, 2021

Appeal No. 2020003101 (E.E.O.C. Sep. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dovie W.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003101 Agency No. ARSIERRA18FEB00732 DECISION On April 4, 2020,2 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 February 14, 2020, final agency decision (final decision) concerning her 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 VACATES the Agency’s final decision and REMANDS the matter for further processing. ISSUE PRESENTED The issue presented on appeal concerns whether the record has been adequately developed to determine whether the Agency subjected Complainant to discrimination based on disability and reprisal. 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 As reflected in her Notice of Appeal/Petition dated April 4, 2020, Complainant indicated that she received the Agency’s final decision on March 6, 2020. We note that the Agency did not challenge the timeliness of the appeal. 2020003101 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Material Handler, WG-6907-06, at the Agency’s Sierra Army Depot (SIAD), Automotive and Armament Command (TACOM), Asset Management Directorate, Warehousing and Storage Division in Herlong, California. On June 15, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of disability (gastrointestinal issues and migraines) and reprisal. Following Complainant’s requests to amend and clarify her complaint, the Agency accepted the following claims for investigation: 1. On February 5, 2018, her initial first level supervisor (S1) failed to provide her with reasonable accommodation; 2. On February 14, 2018, S1 reassigned her to a different position; 3. On June 7, 2018, S1 gave her the lowest performance evaluation score that she had ever received; 4. On June 25, 2018, S1 permanently reassigned her to the line of a Material Examiner and Identifier (MEI1); 5. On July 16, 2018, S1 reassigned her to another Material Examiner and Identifier’s (MEI2) line; and 6. On July 16, 2018, S1 and Complainant’s subsequent first level supervisor (SS1) removed her requested accommodation (chair) from the line. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. In accordance with Complainant’s request, the AJ assigned to the matter remanded the complaint to the Agency on December 5, 2019 and directed the Agency to issue a final decision on the merits of the complaint within 60 calendar days. The Agency ultimately issued a final decision on February 14, 2020, 11 days late, which concluded that Complainant failed to prove her allegations of discrimination. Specifically, about claim 1, the Agency determined that there was insufficient evidence to support Complainant’s allegation that she requested reasonable accommodation and that her request was denied by management. Having reviewed the record, the Agency found that the probative evidence supported the conclusion that “Complainant did not want to request reasonable accommodation and repeatedly made this position clear to management.” Moreover, the Agency emphasized that the available medical evidence made it clear that Complainant could return to full duty. As such, the Agency reasoned that even if Complainant had asked for reasonable accommodation, there was no medical need to accommodate Complainant. For claims 2, 4, and 5, concerning Complainant’s reassignment to various lines, the Agency found that management had legitimate, nondiscriminatory reasons for taking the alleged actions. 2020003101 3 In this regard, the Agency noted that it was the practice of Complainant’s organization “to move employees between tables in order to meet mission requirements.” Furthermore, the Agency noted that management moved Complainant because Complainant needed assistance with lifting. As the moves were found to be “a result of changing mission requirements” which were applicable to all employees, the Agency concluded that Complainant failed to show that she was treated less favorably than similarly situated individuals. With regard to claim 3, the Agency found that S1 gave Complainant a “3” rating because Complainant performed her job to standard, and “did not go above and beyond, by asking for and completing other projects.” While the Agency acknowledged that Complainant had received a higher rating of “2” in previous years, the Agency emphasized that those ratings had been assessed by different supervisors, who “more than likely had different expectations.” For these reasons, the Agency concluded that Complainant could not prevail on this claim. As for claim 6, concerning the removal of Complainant’s chair, the Agency found that management routinely provided chairs for individuals with a reasonable accommodation; however, the Agency emphasized that individuals who did not have such accommodations were not entitled to a chair because the presence of chairs in the warehouse created a safety hazard and made employees less productive. Furthermore, the Agency reasoned that even if Complainant had a reasonable accommodation necessitating the use of a chair, management effectively accommodated her by allowing her to use the stools that were at each workstation. This instant appeal followed. CONTENTIONS ON APPEAL Through her representative, Complainant disputes the Agency’s finding of no discrimination and maintains that management failed to provide her with reasonable accommodation. In opposing the Agency’s final decision, Complainant emphasizes that the final decision failed to address reprisal as a basis.3 The Agency requests that the Commission affirm its final decision. In so arguing, the Agency requests that the Commission find its failure to address reprisal as a basis to be harmless, as the ROI fails to demonstrate that Complainant was subjected to reprisal. 3 Complainant also seeks sanctions against the Agency for its untimely issuance of the final decision; however, as we are remanding the entire complaint for further processing, we decline to address this issue. 2020003101 4 STANDARD OF REVIEW 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 (EEO MD-110), at Chap. 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”). ANALYSIS AND FINDINGS After a thorough review of the record, we find the evidence before us to be insufficient to determine whether the Agency subjected Complainant to discrimination when S1 issued Complainant a low performance evaluation on June 7, 2018. In this regard, while the Agency found that S1 gave Complainant a “3” rating because Complainant performed her job to standard, and “did not go above and beyond, by asking for and completing other projects,” we note that the record does not contain the performance evaluation at issue or any evidence concerning Complainant’s performance. Under our regulations and EEO MD-110, agencies are required to develop a complete and impartial factual record. See 29 C.F.R. § 1614.108(b); and EEO MD-110 at Chap. 6. Given that the performance evaluation is at issue, it is crucial for us to examine the performance evaluation in order to assess Complainant’s claim as well as the legitimacy of the Agency’s action. As the Agency failed to develop a complete and impartial factual record, we conclude that further development of the record is warranted.4 We also agree with Complainant that the Agency’s final decision contains no mention of reprisal. Accordingly, we direct the Agency to issue a new final decision following the supplemental investigation, addressing all the claims and bases, including the basis of reprisal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency’s final order and remand the matter to the Agency for further processing as directed in the ORDER below. 4 To avoid piecemeal litigation and fragmentation of the EEO complaint, we decline to adjudicate the remaining claims and shall remand the entire complaint to the Agency. See EEO MD-110 at Chap. 5, §III. 2020003101 5 ORDER The Agency shall take the following actions: 1. Within sixty (60) calendar days of the date this decision is issued, the Agency shall complete a supplemental investigation into claim 3 concerning Complainant’s performance evaluation. The supplemental investigation shall include the following: a. The performance evaluation that Complainant received on or about June 7, 2018; b. Any material that S1 relied on to rate Complainant; c. Any material that the reviewing/concurring official (Complainant’s second supervisor) relied on to assess Complainant’s performance;5 and d. Any evidence that the Agency and/or EEO investigator deems to be relevant and necessary to adjudicate the claim. e. Any evidence and argument Complainant wishes to make in response to the evidence and materials provided in a.- d. 2. Within ninety (90) calendar days of the date this decision is issued, the Agency shall issue a new final agency decision on the merits of the entire complaint, including the basis of reprisal. 3. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). 5 This individual is identified on page 000188 of the ROI. 2020003101 6 Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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). 2020003101 7 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 September 13, 2021 Date