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

Equal Employment Opportunity Commission

Dec 14, 2021

Appeal No. 2020004243 (E.E.O.C. Dec. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Evelina M.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020004243 Hearing No. 480-2019-00059X Agency No. 17-62583-47838 DECISION On June 30, 2020, 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 May 31, 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., 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. 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 a temporary GS- 0899-4 Student Trainee (Engineer)/Pathways Intern at the Agency’s Command Information Office (CIO) in Port Hueneme, California. Complainant was appointed for a term not to exceed one year. Complainant’s supervisor was the CIO Operations and Support Division Manager (COSD Manager). Report of Investigation (ROI) at 33-35, 234, 247-48. 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. 2020004243 2 Complainant stated that she was hired in June 2017 and reported for orientation on July 10, 2017. The CIO Resource and Acquisition Management Division Manager (CRAMD Manager) averred that, although she is responsible for all interns during the first day of onboarding, she does not supervise them unless they are assigned to her area. Although Complainant was not in the CRAMD Manager’s chain of command, and CRAMD could not approve her work schedule, CRAMD asked all the interns for their desired work hours on their first day. According to Complainant, she told the CRAMD Manager that she wanted to work 7:00 a.m. to 3:00 p.m. Complainant averred that, although she knew that the position was full time, she did not realize the position required an eight-hour day and a 40-hour work week. Complainant stated that a full- time position generally required 40-50 hours of work per week. ROI at 234, 236, 239, 272-74. Complainant is Hispanic, female, and was born in 1971. Complainant stated that she had a foot injury that constituted a physical disability. According to Complainant, she injured her left foot on July 8, 2017, the weekend before orientation. Complainant averred that, as a result of her foot injury, she was limited in her ability to drive, walk, move around, sleep, and shower. ROI at 235- 36, 240, 243-44. Complainant asserted that, on July 10, 2017, she told the COSD Manager that she had broken her foot and missed a doctor appointment in order to attend orientation. According to Complainant, the COSD Manager directed her to seek medical attention and not to return to work until she was medically cleared. Further, Complainant stated that upon her return to work, she was required to bring a completed medical release form authorizing her to work and listing any restrictions. ROI at 236-37. The COSD Manager confirmed that when he met Complainant, on July 10, 2017, after her orientation, she informed him that she had injured her foot over the weekend and had skipped a doctor appointment in order to attend orientation. Further, the COSD Manager averred that Complainant told him that she was experiencing a lot of pain and taking pain pills. In response, the COSD Manager explained, he advised Complainant to seek medical attention for her foot. He was concerned that the Agency could be liable if she were to exacerbate the injury. According to the COSD Manager, he provided Complainant with a Work Restriction Evaluation form and told her to bring the completed form when she returned to work. Because Complainant left early on July 10, 2017, due to her injury, the COSD Manager stated that he did not discuss Complainant’s schedule with her that day. ROI at 101, 249, 253-54. The next day, Complainant sought medical attention and was diagnosed four fractured metacarpal bones in her left foot. According to Complainant, the doctor informed her that surgery was necessary. She could return to work the following Monday, July 17, 2017, following her surgery. Complainant stated that she informed both the COSD Manager and a Human Resources Specialist (HR Specialist) of her upcoming surgery. The COSD Manager acknowledged Complainant’s plans and stated that he asked her to keep him and Human Resources informed of her status. ROI at 101-03, 118-20, 236-37, 243, 245, 249. 2020004243 3 When she attempted to return to work on July 17, 2017, Complainant contends she was denied base access due to a security issue and she filled out a form to request a waiver for base access. The COSD Manager stated that, on the day of her scheduled return, Complainant texted him explaining that she had been denied access to the base and would need to fill out a waiver request, which would likely take 10 to 15 days to process. According to the COSD Manager, no one other than Complainant notified him that Complainant had been denied access to the base. While Complainant stated that she had received an email regarding the her denied access, the COSD Manager asserted that when he asked her to forward the email to him, she told him that she accidentally deleted the email and could not recover it. ROI at 97-100, 121-28, 237-38, 249- 51, 262. According to Complainant, on August 3, 2017, she received an email stating that her waiver request for base access had been approved. She argued, however, that the email did not state when she could return to work. Complainant explained that she did not return to work the next day, on August 4, 2017, because “I didn’t check my email until August 6, 2017, when I accessed my mail account.” ROI at 238. Upon reading the email, Complainant stated she emailed the HR Specialist and noted that, despite receiving notice of her ability to access the base on August 3, 2017, she would not return to work until August 15, 2017, due to lack of funds to get to work. ROI at 238-39. The COSD Manager stated that, on August 6, 2017, Complainant texted him that she did not see the August 3, 2017, email until August 5, 2017, when she checked her email. According to the COSD Manager, Complainant asked him when she should return to work, and he told her to contact Human Resources on Monday, August 7, 2017. The COSD Manager averred that no one other than Complainant informed him that her waiver request had been approved. The HR Specialist stated that on August 7, 2017, Complainant emailed her stating that she was not financially able to return to work. The next day, the COSD Manager emailed Complainant a direct order to return to work. According to the COSD Manager, although his supervisor had advised him that he should terminate Complainant, he wanted to give her a chance. ROI at 110- 13, 131-32, 135-36, 250, 252-57, 262-63. Complainant acknowledged that on August 7, 2017, she received a direct order to return to work on August 10, 2017. She told the COSD Manager that she would arrive by 7 a.m. Responding by email and text message, the COSD Manager notified Complainant that she should arrive between 8:00 a.m. and 8:30 a.m. and they would discuss her work schedule at that time. ROI at 137-39, 238. Despite the direct order to arrive no later than 8:30 a.m., and instructions on which building to report to, the COSD Manager attested that Complainant did not arrive until approximately 8:50 a.m. on August 10, 2017. Complainant argued that she arrived at 8:32 a.m., but had initially reported to the wrong building. Moreover, the COSD Manager stated that Complainant only worked, at most, six hours that day because she left at 2:40 p.m. to take care of her grandchildren. When Complainant stated she was leaving, the COSD Manager averred, she was counseled that she was expected to work her full shift. 2020004243 4 Complainant reasoned that she had worked a full day because she “completed the schedule that [the CRAMD Manager] and I had arranged”, and she informed the COSD Manager of such. ROI at 239. However, the COSD Manager considered any discussion Complainant may have had with the CRAMD Manager to be unofficial and not binding, because the CRAMD Manager was not Complainant’s supervisor, he was. The COSD Manager added that, because a full workday includes at least 30 minutes for lunch, even if Complainant started work at 7 a.m., she would not have completed her workday until 3:30 p.m. at the earliest. ROI at 95, 238-39, 253-54. Upon her return to work on August 10, 2017, Complainant provided HR with a medical release stating she could perform eight hours of seated work per day. According to the HR Specialist, she noticed that the medical documentation also stated that Complainant could not drive. The HR Specialist averred that, since Complainant had driven to work that day, she asked Complainant to contact her doctor to clarify her medical restrictions and to email Human Resources what the doctor said. The following day, after an appointment with her medical provider, Complainant texted the COSD Manager to inform him she could not return to work until August 18, 2017, when her doctor advised she could drive without wearing a medical boot. Complainant averred that she planned to provide medical documentation when she returned to work. The HR Specialist denied requesting medical documentation from Complainant. ROI at 109, 140, 217, 226-29, 239-41, 254-55, 263-64. On August 16, 2017, Complainant received a Notice of Termination from Temporary Appointment, effective August 17, 2017, for not meeting the work demands of her position. According to the COSD Manager, after discussions with Human Resources, the Legal Office, and his supervisor, he decided to terminate Complainant because she did not fulfill work expectations. The record contains a copy of the Notice, which states that during Complainant’s six weeks of employment with the Agency she had not completed the check-in process, executed the program agreement, or been at work on a regular basis. The Notice further notes that, on August 10, 2017, Complainant left work early. Complainant believed that her termination was motivated by her race, sex, disability, and age, reasoning that there was no other reason why she would be fired. ROI at 158-59, 162, 240-242, 255-58. On October 18, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic), sex (female), disability (physical), and age (born in 1971) when, on August 16, 2017, while out of work due to her medical injury, she received a Notice of Termination from Temporary Appointment, effective August 17, 2017, due to not meeting the work demands of her position.2 ROI at 78. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). 2 Complainant withdrew disability (mental) as a basis during the investigation of the complaint. Additionally, although Complainant designated her race as “Hispanic,” the Commission recognizes this term as an indication of national origin rather than race. 2020004243 5 Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. Neither Complainant nor the Agency submitted a statement or brief on appeal. 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”). Complainant alleged that she was subjected to discrimination based on race, sex, disability, and age when her temporary appointment was terminated. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). The Agency’s legitimate, nondiscriminatory reason for terminating Complainant’s temporary appointment was that she did not fulfill work expectations. Specifically, between July 10, 2017, and August 10, 2017, she had only been at work for two partial days, had not completed the onboarding process, and left work early on August 10, 2017, without authorization. In an effort to establish pretext, Complainant contends that, despite obtaining medical clearance that would allow her to drive to work starting August 18, 2017, she was discriminatorily terminated the day before. 2020004243 6 It is not clear from the record whether the HR Specialist, or anyone else, specifically told Complainant on August 10, 2017, that she could not return to work until she was medically cleared to drive. However, even assuming that Complainant was directed not to return to work until she obtained such medical authorization, this is insufficient to establish pretext. The Agency’s Notice of Termination from Temporary Appointment clearly stated the reasons for Complainant’s termination, and Complainant’s medical restrictions were not cited. Although some of Complainant’s absences from work were related to her foot injury and surgery, her absence between July 17, 2017, and August 9, 2017, and her unauthorized early departure on August 10, 2017, were not related to her injury. Accordingly, even if Complainant was directed to obtain additional medical clearance, this would not establish that the Agency’s proffered legitimate, nondiscriminatory reasons were pretextual. Complainant also argues that, other than her race, sex, disability, and age, there was no reason for her termination. However, as discussed above, the Agency has provided legitimate, nondiscriminatory reasons for its actions, and this general assertion is insufficient to establish pretext by preponderant evidence. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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 2020004243 7 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. 2020004243 8 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 December 14, 2021 Date