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

Equal Employment Opportunity Commission

May 26, 2022

Appeal No. 2020004824 (E.E.O.C. May. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jaunita W.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020004824 Hearing No. 410-2018-00242X Agency No. DON-17-67400-00679 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 August 1, 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. At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency’s Camp Butler/Camp Foster in Okinawa, Japan. On March 6, 2017, Complainant filed an EEO complaint alleging that the Agency failed to accommodate her disability (mental and physical) when it denied her reasonable accommodation request. Complainant also alleged discrimination on the bases of race (African American), disability, and reprisal for prior protected EEO activity, when she was issued a Letter of Caution and a Letter of Reprimand. Complainant further alleged that she was subjected to harassment. Examples of the alleged harassment include the Director of the Civilian Human Resources Office (Director) informing Complainant that her team members no longer respected her; and that “as a Black person, a Black female, you know how it is when a person doesn’t like you and 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. 2020004824 2 when someone is prejudiced against you, surely you know how it is when someone is prejudiced against you.” The Director added that Complainant did not like the local Japanese employees because she was prejudiced against them. Complainant also alleged that the Director asked if Complainant was a member of a Native Indian tribe and if her family members were Black slaves. 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 EEOC Administrative Judge (AJ). 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). In response to Complainant’s request for a reasonable accommodation, the Agency found that Complainant established that she was a qualified individual with a disability. However, Complainant failed to participate in the interactive process and did not provide requested medical documentation outlining her limitations and the impact on her ability to perform the essential functions of her position. Accordingly, the Agency determined that Complainant did not prove a failure to accommodate. The Agency found that management officials set forth legitimate, nondiscriminatory reasons for their actions. Specifically, the Agency issued Complainant a Letter of Caution for disrespectful conduct and clapping her hands in her supervisor’s face; and a Letter of Reprimand for Complainant’s failure to follow instructions to complete training, despite repeated extensions of the due date for the completion of the training. The Agency then found that Complainant did not show that the explanations were pretexts for discrimination. In response to the allegations regarding statements that Complainant was prejudiced, the Agency noted that the Director stated that she addressed employees’ feelings of Complainant’s mistreatment. The Director explained that she told Complainant that when she was angry at only one employee but yelled at all the employees, it was akin to saying, “all black people are such and such,” and she instructed Complainant to not mistreat people because of their race. The Director added that, during another conversation, she and Complainant realized that they were both from Florida and Complainant disclosed that she was a Black Seminole, but that Complainant voluntarily provided the information. Regarding the remaining alleged harassment, the Agency found that the evidence supported that the events were the result of management supervising work; providing feedback on employee conduct; and making determinations on work assignments. Furthermore, the Agency determined that Complainant did not produce evidence that management’s actions were based on her statutorily protected classes. The Agency considered the totality of the circumstances, including the frequency of the alleged discriminatory conduct; its severity; and whether it reasonably interfered with Complainant’s work performance, and the Agency concluded that Complainant failed to meet her burden of proving harassment based on her disability or race, or in reprisal for her prior protected EEO activity. 2020004824 3 The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. The instant appeal followed. 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”). As an initial matter, Complainant requested the appointment of an EEOC AJ. However, Complainant voluntarily withdrew her request for a hearing and she is no longer entitled to a hearing. See Hansen v. Dep’t of Justice, EEOC Appeal No. 0120112338 (Sept. 23, 2011). In addition, Complainant provided additional documents on appeal, but as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, the Commission declines to consider this new evidence on appeal. Regarding the reasonable accommodation claim, Complainant argues that the Agency denied her request to return to her home in the United States and telework for three to four months, yet it allowed a supervisor to work from Florida. However, we find that Complainant’s medical documentation provided limited information about her condition, and that it is undisputed that Complainant did not provide the Agency’s requested additional medical information, such as the extent to which her impairments limit a life activity. ROI at 489-90, 500-3. As such, we find that the Agency correctly determined that Complainant failed to participate in the interactive process and did not prove a failure to accommodate. See Chanelle B. v. Dep’t of the Army, EEOC Appeal No. 0120182515 (Nov. 5, 2019) (complainant’s failure to provide medical documentation caused a breakdown in the interactive process because the agency was unable to determine the duration and severity of the complainant’s symptoms or determine the effectiveness of the proposed accommodation); Bergren v. Dep’t of Com., EEOC Appeal No. 0120090265 (July 17, 2012) (complainant’s failure to comply with a reasonable request from the agency for documentation indicates that he was responsible for the breakdown in the interactive process). For her harassment claim, Complainant only described prior Commission decisions related to cases where the agencies fragmented incidents of alleged harassment and dismissed the complaints. However, Complainant did not provide specific arguments for her harassment claim. 2020004824 4 Here, we find that the Agency did not fragment Complainant’s harassment claim and analyzed the totality of the circumstances before concluding that Complainant did not establish that she was subjected to unlawful harassment. Upon careful review of the Agency’s decision and the evidence of record, and the contentions on appeal, including those not specifically addressed herein, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected her to discrimination or harassment as alleged. Accordingly, we AFFIRM the Agency’s final 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). 2020004824 5 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 May 26, 2022 Date