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

Equal Employment Opportunity Commission

Oct 31, 2022

Appeal No. 2022001464 (E.E.O.C. Oct. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mikki P.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022001464 Hearing No. 570-2021-00998X Agency No. DON-21-00052-00057 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the November 22, 2021, decision of an EEOC Administrative Judge 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., 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.2 BACKGROUND During the period at issue, Complainant worked as a Management Analyst, GS-13, at the Agency’s Commander, Naval Installations Command in Washington Navy Yard, Washington, D.C. 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 The record does not indicate that the Agency issued a final order indicating that it would fully implement the AJ’s decision. Pursuant to EEOC Regulation 29 C.F.R. § 1614.109(i), the AJ’s decision is the final Agency action. 2 2022001464 On November 7, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her and subjected her to harassment based on race (African American), disability (diagnosed in 2014 with Sjogren’s Syndrome, an autoimmune disorder), and age (54) when: 1. On November 4, 2020, Complainant was placed on a Performance Improvement Plan (PIP) dated November 9, 2020, and signed by Complainant’s first-line supervisor (Supervisor) on November 4, 2020. 2. From May 2020 to present, Complainant was subjected to a hostile work environment by her Supervisor, as supported by the following alleged incidents: a. on November 23, 2020, Complainant’s co-worker was afforded the opportunity to receive training despite Complainant’s Supervisor having repeatedly informed Complainant that he was not going to provide training to Complainant because “[Complainant is] a GS 13 Analyst and shouldn’t need training”; b. on November 4, 2020, Complainant was given an unreasonable, last-minute work assignment by her Supervisor; c. on October 23, 2020, Complainant was denied training by her Supervisor who informed her to “go figure it out [Complainant is] a GS 13 Analyst and shouldn’t need training”; d. on September 23, 2020, Complainant received a negative mid-year performance review from her Supervisor, who threatened her during the mid- year performance review meeting that he was going to put Complainant on a PIP; and e. on May 5, 2020, Complainant’s Supervisor required Complainant to come into the office even though she previously provided medical documentation from her physician stating that Complainant was considered High-Risk and should not report to the office during the duration of the COVID-19 pandemic. After an investigation, the Agency provided Complainant a copy of the report of investigation (ROI) and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, on November 2, 2021, the AJ issued a Notice of Proposed Summary Judgment (Notice). Both Complainant and the Agency submitted statements in response to the AJ’s Notice. On November 22, 2021, the AJ issued a decision by summary judgment in favor of the Agency concluding Complainant did not establish that she was discriminated against or subjected to a hostile work environment based on her race, disability, or age. 3 2022001464 The instant appeal by Complainant followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. The AJ correctly determined that Complainant was a qualified individual with a disability within the meaning of the Rehabilitation Act. There is no dispute between the parties that Complainant’s medical condition did not directly impact her ability to perform the essential functions of her position. In fact, the evidence establishes that management was not aware of Complainant’s disability until May 27, 2020, when she provided her Supervisor with medical documentation indicating she had a medical condition that would place her at high risk of adverse COVID-19 complications. This documentation was submitted in support of her request for full-time telework during the COVID pandemic. As such, the AJ correctly determined that Complainant’s Supervisor could not have violated Complainant’s in-office medical exception on May 5, 2020, because Complainant had not informed her Supervisor of her medical condition until May 27, 2020. The record reflects that Complainant’s Supervisor allowed Complainant to telework once she submitted documentation that she was high risk for COVID complications. After careful review of the record, we also concur with the AJ’s determinations that Complainant has not established that her claims concerning her dissatisfaction with training, comments regarding the requested training, last-minute work assignments, and placement on a PIP were based on her EEO protected categories. 4 2022001464 Complainant’s Supervisor testified that there was no formal training process for Complainant’s position because she was hired at full-performance, which meant that it was expected that she already had the requisite skills to perform the job duties. However, management provided Complainant on-the-job training with her co-workers. Moreover, the record showed that Complainant was not the only employee who was dissatisfied with the effectiveness of the on- the-job training. Regarding last-minute work assignments, Complainant’s Supervisor explained that all employees in Complainant’s division have been assigned last minute work and that these assignments are usually driven by higher headquarters’ requirements. Regarding the PIP, Complainant’s Supervisor stated that Complainant had sub-standard performance on all three performance elements on her mid-year performance review, and after consulting with Human Resources, he determined that a PIP would provide Complainant an opportunity to improve her performance. Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, disability or age. A case of harassment violative of the employment discrimination laws is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). As a final note, on appeal, Complainant argues that the Agency retaliated against her (for her filing the instant complaint) in March 2022, when she was terminated from her position at a company that performed contracting work for the Agency. This issue, however, was not part of her complaint at issue. The Commission has long held that a complainant may not raise a new claim for the first time on appeal. See, e.g. Torres v. U.S. Postal Service, EEOC Appeal No. 01934108 (June 10, 1994). If Complainant wishes to pursue this claim, she is advised to initiate contact with an Agency EEO Counselor. CONCLUSION Accordingly, we AFFIRM the AJ’s decision, which we construe as the Agency’s final action. 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. 5 2022001464 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. 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. 6 2022001464 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 October 31, 2022 Date