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

Equal Employment Opportunity Commission

Jul 6, 2021

Appeal No. 2020001311 (E.E.O.C. Jul. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raymond H.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020001311 Hearing No. 570-2017-00573X Agency No. DON17-67597-02918 DECISION On November 14, 2019, 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 October 28, 2019, final decision concerning his 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. 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 Financial Management Analyst, GS-0501-11 at the Agency’s Financial Improvement and Audit Readiness (FIAR) Department, Field Support Activity, Washington Navy Yard in Washington, D.C. On August 29, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (Post Traumatic Stress Disorder (PTSD)) and in reprisal for prior protected EEO activity when: 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. 2020001311 2 1. as of July 13, 2017, his supervisor, the FIAR Department Head (S1) continued to bait and agitate him regarding his current reasonable accommodation request; 2. on July 13, 2017, S1 spoke to him in an abrasive, embarrassing manner about his failure to attend a class; 3. as of July 13, 2017, S1 required him to use the Defense Travel System (DTS) even though she was aware that it triggers Complainant’s medical conditions associated with his reasonable accommodation request; and 4. S1 has unreasonable expectations concerning his training, knowledge, and experience, which creates anxiety, making it impossible for him to meet deadlines. Complainant contended that his PTSD condition makes it difficult for him to perform non- routine tasks and work with systems that are unfamiliar to him or outside his primary functions. Complainant asserted that he develops tremendous anxiety if required to perform such tasks. In February and April 2016, Complainant requested, as reasonable accommodation, among other things, that he be transferred to another position with different duties, restructuring to his duties and modifications to his work environment, and access to regular day off (RDO) and additional telework days. In May 2016, Complainant was granted several accommodations including: telework one day a week, breaks as needed, time off when needed for appointments, assignments and instructions in writing when possible, and flexibility in arrival times. Agency management determined that Complainant’s medical documentation did not support movement away from the FIAR team or other restructuring to his duties. S1 entered duty with the Agency as Department Head in July 2016. S1 became aware of Complainant’s accommodations in August 2016. In February 2017, S1 asked to review Complainant’s accommodations because she believed they were vague, especially breaks because Complainant was often away from his desk for long periods of time. Complainant had been working under a schedule that gave him an RDO. S1 rescinded Complainant’s RDO and regular telework privileges based on performance issues. S1 informed Complainant that he could have the RDO and telework reinstated once his performance improved and he completed additional training. Complainant objected to the rescission of the RDO and telework. S1 reinstated Complainant’s telework agreement shortly thereafter, however, after reviewing his approved accommodations. RDO was not included in the granted accommodations. Complainant further objected that the training S1 assigned him was inadequate and that he needed screen printouts and on-the-job training. Consequently, it took him longer than expected to complete the training since he needed to capture screenshots throughout. Complainant subsequently requested additional accommodations. S1 discussed the matter with the Agency’s Reasonable Accommodation Specialist (RAS1). Complainant again requested to be transferred to another position (his previous position) with different duties, restructuring of work duties, a return to known routines and systems and emphasis away from new systems and toward tasks that were low impact and deliverable with a repetitive focus, access to RDO for medical appointments, no public speaking, and other modifications. 2020001311 3 The Agency requested additional medical documentation and Complainant eventually provided some documentation in support. A review of the medical documentation Complainant provided reveals a letter from a psychiatrist dated April 17, 2017, identifying Complainant’s condition and supporting two days of telework per week, a flexible work schedule, and the ability to step away from stressful situations. On April 25, 2017, the Agency asked Complainant to clarify the medical documentation he submitted; however, the Agency continued to allow Complainant one day of telework per week. In addition, Complainant could take breaks as needed throughout the day, but if break time exceeded normal hours, Complainant needed to make up the time at the end of his workday. The Agency also agreed to provide Complainant flexibility in arrival time and to provide assignments, instructions, or training in writing or via email. The Agency concluded that Complainant provided insufficient medical documentation to support further accommodations, including a transfer back to his previous position in Resources Management (RM). Complainant’s request for RDO was addressed and reinstated through the Agency’s existing scheduling policy rather than the reasonable accommodation process. Another reasonable accommodation specialist (RAS2) explained that Complainant had arrived at FIAR from RM because Complainant did not want to work in RM with another employee. Accordingly, the Agency could not send him back to RM since the other employee was still there. RAS2 also said that RM work was more demanding than FIAR work and that there were no vacancies in RM. RAS1 asserted that the Agency provided Complainant all the accommodations he asked for except for his transfer back to RM. RAS1 added that “it appeared [Complainant] did not want to learn the new system.” Further, S1 questioned Complainant’s inability to complete training and noted that Complainant routinely called out sick two to three times a week. S1 and Complainant’s new supervisor (S2) gave Complainant extra time to complete the training, but according to S2, “the classes are one hour in length and taking weeks to complete them was an unreasonable expectation.” Further, S1 insisted that S2 gave Complainant on-the-job training and that he was allowed to take screenshots and notes, but “I said he had to at least try. If you show someone something 2-3 times, they need to try themselves.” S2 said he “made every attempt to try to get [Complainant] the necessary training, knowledge, or experience to fulfil the expectations of his job.” S2 provided evidence of a training plan that identified classes Complainant needed to take in order of priority. S2 noted that he was able to successfully complete all 11 training classes in one workday, but Complainant took a few months. Yet, Complainant was still performing below his job level. Complainant conceded that, after he raised the issue of his RDO with his direct supervisor (S2), it was quickly restored. However, Complainant argues that he needed the RDO, along with teleworking privileges, so that he and his wife could attend various medical appointments. Complainant argues that DTS contained ever-expanding data that dramatically increased the size of routine reports. 2020001311 4 Complainant further asserts that S1 was burying him under abstractions and unclear tasks and designating him as a subject matter expert in DTS despite knowing he had limited knowledge. In July 2017, S1 invited Complainant to attend a training class she was attending. Complainant responded to S1’s invitation a few days later stating that he could not attend because he was not previously aware of the class. S1 responded to Complainant asking him to update his training records regarding a previous training class he attended. S1 said that Complainant’s duties required him to be the Lead Defense Travel Administrator and Travel Card Agency Program Coordinator. S1 said that Complainant had these responsibilities prior to her arrival. According to S1, the department is supposed to only have about 1 percent of accounts in delinquent status. When S1 arrived, under Complainant’s control, DTS had 3 percent delinquency. S1 added that the data Complainant generated was inconsistent and could not be interpreted. S1 said that being “able to manage and generate reports from DTS is a key part of his job. If he can’t use it, he can’t do his job.” S1 was unaware that DTS triggered Complainant’s medical conditions because Complainant “did not report this concern” to her. S2 corroborated S1’s position that Complainant’s primary function was to manage the travel program, and that if he could not, then he would not be able to perform the primary function of his employment. S2 further explained that S1 often requested a general result but does not provide step-by-step guidance. S2 conceded that S1 can come off as abrasive and short through email communications. One of Complainant’s coworkers (CW1) concurred, saying that S1 is “straight to the point [and that] there is sometimes too little guidance and you have to go back and get her to explain her expectations a bit further.” Another coworker (CW2) discussed Complainant’s workload and noted that “we all have a workload that is more than one person can do.” In July 2017, S1 stated that she received a Naval Criminal Investigative Service (NCIS) report into allegations Complainant had made a threatening statement in May 2017. The report concluded they did not have enough to criminally charge Complainant but recommended administrative action. Around that time, S1 was preparing disciplinary action based also on Complainant’s performance issues. S2 stated that in November 2017, Complainant was arrested for solicitation of murder. Complainant remained incarcerated at the time of his appeal. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his 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 him to discrimination or reprisal as alleged. The instant appeal followed. 2020001311 5 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”). Denial of Reasonable Accommodations 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). We will assume, without so finding, that Complainant is an individual with a disability. After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002); see also Abeijon v. Dep't of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). The Commission has long held that reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable Complainant to perform the essential functions of her current position or all other reasonable accommodations would impose an undue hardship. Zachary K. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130795 (Nov. 19, 2015) citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002). Moreover, in cases regarding reassignment a complainant must present sufficient evidence to support a finding that, more likely than not, there was a vacant, funded position, for which he was qualified and to which he could have been reassigned. See Barnard v. U.S. Postal Serv., EEOC Appeal No. 07A10002 (Aug. 2, 2002). The record makes clear that Complainant had several performance issues that S1 attempted to address, but in doing so, Complainant believed that she created conflicts with his accommodations that were then in place. Specifically, Complainant complained that he was unable to work with DTS and sought additional training. 2020001311 6 In response, S1 sought to bring Complainant into the office more often so that he could have on- the-job training, which conflicted with Complainant’s telework accommodation and RDO. As a result of these issues, Complainant went through the reasonable accommodation process again to determine what accommodations were appropriate. Both RDO and telework were reinstated following a review of Complainant’s training needs, performance issues, and need for accommodation. A review of the Agency’s interactions with Complainant demonstrate that, when Complainant sought reasonable accommodation, the Agency appropriately asked Complainant for medical documentation to support his requests. Complainant did not show that there were a vacant, funded position in RM into which he could transfer. Furthermore, his submitted medical documentation did not support his request to transfer. Complainant was previously transferred out of RM due to problems with a coworker. Additionally, the Agency believed that the accommodations it provided to him would enable him to perform the functions of his position. We also note that Complainant complains that he was assigned an excessive workload in FIAR, but there is testimony in the record that RM was a more intense department to work in than FIAR. Complainant has presented no evidence that the provided accommodations and alternative accommodations offered were ineffective. Accordingly, the Commission finds that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. Hostile Work Environment To establish a claim of hostile work environment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his statutorily protected class; and (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 to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove his harassment claim, Complainant must establish that he 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, a review of the record reveals that, the totality of the incidents alleged were not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision and general workplace disputes and tribulations. 2020001311 7 As discussed above, regarding Claim (1), the Agency provided Complainant all accommodations that were supported by medical documentation. Complainant’s request to transfer back to his original position was denied because there were no vacant, funded positions into which he could be reassigned and the co-worker with whom he conflicted was still in that unit. With regard to S1’s communications to Complainant as alleged in Claim (2), testimony from coworkers and other supervisors indicate that S1 was normally short and brusque in her email communications, and frequently needed clarification. The record supports that S1 simply invited Complainant to a training class she was attending and asked him to update his training records regarding another course when he declined. Additionally, regarding Claim (3), S2 required Complainant to use the DTS system because it was a primary function of his job. As to Claim (4), other employees testified that everyone in FIAR had an excessive workload; Complainant’s workload was not the result of his protected classes. The Commission finds that Complainant has not shown that he was subjected to a discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 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. 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). 2020001311 8 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. 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. 2020001311 9 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 July 6, 2021 Date