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

Equal Employment Opportunity Commission

Sep 30, 2021

Appeal No. 2020003680 (E.E.O.C. Sep. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susan G.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003680 Agency No. 18-00027-01253 DECISION On May 20, 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 April 23, 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist, GS-2210-11, in the Technology Services Organization (TSO) for the Defense Finance and Accounting Service, Marine Corps Division, in Indianapolis, Indiana. Complainant had been employed as a Personnel Security Specialist, GS-0080-11, in TSO from approximately 2011 to December 2017. In September 2017, Complainant received a Notification of Management Directed Reassignment to the IT Specialist position. Management had decided to move most of the Personnel Security duties to Headquarters. Complainant subsequently claimed that she did not receive necessary training for the IT Specialist position. 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. 2020003680 2 Complainant’s supervisor (S1) stated that she met with Complainant following her reassignment to the position and provided her a five-week transition plan and instructed her to submit formal training requests when opportunities arose. S1 noted that Complainant failed to take advantage of several training opportunities in November 2017 through January 2018. Complainant experiences complications from several conditions including Post-Traumatic Stress Disorder (PTSD) and a hearing impairment. Complainant stated that her conditions are well known, and she wears hearing aids at work. Complainant acknowledged that she is able to perform the essential duties of her position without a reasonable accommodation. Complainant claimed that she submitted letters from her Veterans Affairs (VA) Counselor that indicated it would be in her best interest to be transferred to another area within TSO. Complainant claimed that the stress of her work environment had triggered her PTSD. During a meeting regarding a transfer with her first-level supervisor (S2) and second-level supervisor (S2), Complainant alleged that S2 stated that if she transferred to another area, he would lose a GS-11 IT Specialist billet from his Security Branch. Complainant believed that this was a threat. On January 26, 2018, Complainant submitted a request for reasonable accommodation requesting to be transferred from under the supervision of S1 and the Team Lead (TL). In addition, Complainant requested: to be trained in her reassigned position as an IT Specialist, a job coach, permission to telework, clear instructions, and a reassignment to a vacant position outside of the Security Clearance Branch. S1 stated that she forwarded Complainant’s request to an Equal Employment Opportunity Specialist and then provided a package for Complainant to complete and submit. S1 asserted that she reminded Complainant to submit her supporting documentation on March 14, 2018, but Complainant responded that she should ignore the request because she was planning to retire. Notwithstanding, the Chief of Staff (COS) confirmed that he had conducted a search, but there were no vacant, funded positions into which Complainant could be reassigned. On or around January 19, 2018, Complainant claimed that TL copied S1 on an email discussing Complainant’s PTSD condition. Complainant claimed that this violated the Health Insurance Portability and Accountability Act (HIPAA) and the Privacy Act.2 TL confirmed that Complainant reported in a work order communication form (JIRA) that she would be unable to complete some work because of her PTSD condition and included detailed information about her condition. TL noted that he advised Complainant not to include such personal information in a JIRA because it could be viewed by other employees and officials. TL included S1 in the email because she was their supervisor and needed to know about the incident, but that S1 already had access to the JIRA in which Complainant disclosed her condition. Additionally, in January 2018, Complainant alleged that TL sent an email to her and cc’d S1 telling her not to contact the Security Manager for Headquarters Marine Corps (SM). Complainant stated that she called SM anyway. 2 The Commission does not have jurisdiction over claims under HIPAA and the Privacy Act. 2020003680 3 TL confirmed that he instructed Complainant not to contact SM. TL explained that only certain positions had authorization to contact SM regarding TSO-Indy personnel issues and Complainant did not have such authorization. TL affirmed that he discussed the matter with SM and instructed Complainant to stop contacting SM. Complainant alleged that her prior September 27, 2017 reassignment notification was incomplete because her right to dispute the action was missing and her signature was on a separate page. Complainant further claimed that she did not see the reassignment notification until she researched the requirements for a reassignment. Complainant contended that this was another example of S2 holding a document without presenting it to her as required. S2 affirmed that the matter had been discussed with Complainant prior to the issuance of the reassignment notification. S2 confirmed that he provided Complainant a copy of the notification in June 2018, after she requested it. Complainant claimed that, beginning in 2011, she began performing the duties of a Personnel Security Manager in addition to her duties as a Personnel Security Specialist. Complainant alleged that she had to perform these extra duties because she was the only person at the facility who had training for the position. Despite this, Complainant claimed that a co-worker (CW1) was selected for the position once it was advertised in October 2013. Complainant alleged that it was re-advertised in 2016 and she applied. Complainant stated that the vacancy announcement was later canceled because she pointed out that the experience and skills questions were fraudulent. COS explained that from 2011 through 2016, Complainant was assigned as a GS-11 Security Specialist. CW1 was hired under the Priority Placement Program under the vacancy recruitment for a GS-12 Security Specialist. COS stated that CW1 was never Complainant’s supervisor, but his position was graded as a GS-12 because his position description included several responsibilities that were not included in Complainant’s. For example, CW1 was assigned as the Personnel Security Lead, Physical Security Specialist Facilities Manager for Building Security, Asset Control Manager, Organization Evacuation Coordinator and, he managed parking badges. COS expressed that Complainant was responsible for gathering and preparing documentation for SF-86 Security Clearance packages. When CW1 left the organization, management decided to realign his position based on the needs of the organization and replaced the Security Specialist position with an IT Specialist position and, thus, canceled the vacancy announcement. Complainant further alleged that her third-level supervisor (S3) appointed S1 to the Security Manager position. This position oversaw the Personnel Security Office that Complainant claimed she had managed since 2011. COS explained that the Security Manager position was a collateral duty appointment for S1 who assumed duties previously performed by CW1. On December 2, 2016, Complainant claimed that S2 wrote a fraudulent Letter of Reprimand (LOR) stating that she had gone outside of the TSO to report insider breaches. Complainant claimed that S2 held the LOR over her head while not placing it in her Official Personnel File (OPF). Complainant alleged that S2 did this to prevent her from attending training in July 2017. 2020003680 4 S2 confirmed that he issued Complainant a LOR for failing to follow instructions. S2 maintained that he forwarded the LOR to an HR Technician who failed to officially file it for an unknown reason. In July 2017, S3 denied Complainant’s training because S3 did not want employees with pending disciplinary actions to represent the TSO at training events outside of the TSO. This personal policy subsequently became Agency policy and S3 stated that he denied a co-worker’s travel request for the same pending disciplinary action reason. S2 asserted that the original LOR was returned to Complainant on December 7, 2017 and, all copies were removed from her OPF. On June 8, 2018 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (hearing loss and Post Traumatic Stress Disorder (PTSD)), age (74), and reprisal (prior protected EEO activity) when: 1. Complainant alleged management failed to provide timely and effective reasonable accommodations when on or around January 29, 2018, Complainant met with her first-level supervisor (S1) and her second-level supervisor (S2) and she became aware she was not going to be transferred to another area of TSO, even after Complainant had submitted a letter from a VA Mental Health Counselor stating that the move would be in her best interest. 2. Complainant was subjected to discrimination when: a. on or around January 19, 2018, the Team Lead (TL) copied S1 on an email discussing Complainant’s personnel issues; b. in January 2018, TL contributed to a hostile work environment when he told Complainant not to contact the Headquarters Marine Corps Security Manager; c. on June 11, 2018, Complainant became aware of Notification of Management Directed Reassignment letter dated September 27, 2017, notifying her that she was being reassigned to an IT Specialist, GS-2210-11 position when S2 sent it to her. 3. Management subjected her to a hostile work environment when: a. In April 2016, Complainant was not promoted to the Security Specialist, GS- 0080-12 position. Complainant alleges this is a continuing violation of non- promotion and pay inequity as she was not compensated for doing the same work performed by her former coworker (CW1), Team Lead, Physical Security Specialist, GS-0080-12; b. in April 2016, Complainant became aware S1 had been selected as the TSO Security Manager; c. in July 2016, Complainant had taken over all functions previously performed by a Security Specialist (CW1) and was not selected for the position. Complainant alleges the position was advertised and cancelled by the Chief of Staff; d. on or around December 2, 2016, a Letter of Reprimand (LOR) that was issued to Complainant was never placed in her Official Personnel File but, the LOR was “held over her head” by S2 to deny training; 2020003680 5 e. In November 2017, Complainant became aware of a management directed reassignment to change Complainant from Security Specialist, GS-0080-11 to IT Specialist, GS-2210-11, effective December 10, 2017; and f. Complainant alleged that since being reassigned to the IT Specialist position, effective December 10, 2017, she was not provided with training opportunities because she believes management was trying to push her out. 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 EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. 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 Accommodation An agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). For purposes of this decision, we assume that Complainant is an individual with a disability. The record reveals that in December 2018, Complainant submitted documentation from her therapist stating that “her condition appears to have been exacerbated by stressful conditions related to a change in work assignment. Addressing this issue would appear to be in her best interest.” Complainant requested a reasonable accommodation in January 2018 in the form of (1) reassignment from her supervisors and outside of the Security Compliance Branch; (2) IT Specialist training; (3) a job coach; (4) telework once a week; and (5) written, clear work instructions from her supervisor. 2020003680 6 S1 stated that she forwarded Complainant’s request to HQMC Reasonable Accommodation Program Office and Complainant was given paperwork to complete and submit in support of her request. Meanwhile, S3 stated that he conducted a job search but there were no vacant, funded positions for which Complainant was qualified. S1 stated that he reminded Complainant to submit her documentation, but Complainant informed her to ignore the request because she planned to retire. If an individual's disability or need for accommodation is not obvious, and she refuses to provide the reasonable documentation requested by the employer, then she is not entitled to reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (Oct. 17, 2002). Here, Complainant failed to produce the requested documentation and subsequently withdrew her request. Furthermore, Complainant has not demonstrated that a vacant, funded position was available. Accordingly, the Commission finds that Complainant has not shown that the Agency denied her reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As more fully discussed above, regarding claim (2)(a) TL sent the email at issue to inform Complainant that she had included inappropriate personal information in a work-order communication form, which he had to report to S1. TL confirmed that he cc’d S1 because she was their supervisor and it was her duty to be aware of these types of communications. As to claim (2)(b), TL asserted that he instructed Complainant not to contact SM because she was not authorized to do so. With respect to claim (2)(c), S2 affirmed that Complainant had previously received the reassignment notice and that he had previously discussed the matter with her prior to the reassignment. S2 provided Complainant a copy after she requested it. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry her burden here. Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency's explanations for its actions were pretext intended to mask discriminatory motivations. As a result, we find that Complainant was not subjected to any unlawful discrimination or reprisal as alleged. 2020003680 7 To the extent that Complainant alleged that TL improperly disclosed her confidential medical information, the Rehabilitation Act specifically prohibits the disclosure of medical information except in certain limited situations. Enforcement Guidance on Reasonable Accommodation, Question 42 (rev. Oct. 17, 2002). Here, there is no evidence demonstrating that Complainant's confidential medical information was improperly disclosed. Complainant voluntarily disclosed information about her condition in a work form widely accessible to employees. TL advised Complainant not to include personal information in that communication form and included S1 in the email because she was responsible for handling the security incident. There is no evidence that Complainant's confidential medical information was disclosed to anyone or was otherwise accessed improperly. Accordingly, the Commission finds that Agency officials did not unlawfully disclose any confidential medical information in violation of the Rehabilitation Act. Hostile Work Environment To establish a hostile work environment claim, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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 her harassment claim, Complainant must establish that she 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. Anti-discrimination statutes are not general civility codes designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dep't of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). In this case, the Commission finds that the totality of the alleged conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the Agency's actions. 2020003680 8 Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. Wage Discrimination To the extent that Complainant is alleging that she was paid less than CW1 when she performed the same work, we note that the United States Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To establish a prima facie case of a violation under the EPA, a complainant must show that she or he received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (Sept. 12, 2000), req. for reconsid. den’d, EEOC Request No. 05A10076 (Aug. 12, 2003). The requirement of “equal work” does not mean that the jobs must be identical, but only that they must be “substantially equal.” Laffey v. Northwest Airlines, 567 F.2d 429, 449 (D.C. Cir. 1976). The terms skill, effort, and responsibility, “constitute separate tests, each of which must be met in order for the equal pay standard to apply.” 29 C.F.R. § 1620.14(a). The factors of skill, effort, and responsibility used to measure the equality of jobs are not precisely definable. Id. Skill includes such things as “experience, training, education, and ability.” 29 C.F.R. §1620.15(a). Effort addresses the amount of “physical or mental exertion needed for the performance of a job.” 29 C.F.R. § 1620.16(a). Responsibility concerns “the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation.” 29 C.F.R. § 1620.17(a). Here, Complainant failed to establish that she performed equal work that required equal skill, effort, and responsibility, as her higher-paid male colleague who worked as a GS-12 Security Specialist. Specifically, the record shows that CW1 was hired under the Priority Placement Program at the GS-12 level and his position included numerous duties and additional responsibilities that Complainant’s position did not. For example, CW1 was responsible for ensuring that all personnel security investigations were initiated, submitted, and processed for all Government and Contracting personnel. In addition, CW1 acted as the Personnel Security Lead, the Physical Security Specialist Facilities Manager for Building Security, the Asset Control Manager, and the Organization Evacuation Coordinator. CW1 was also responsible for the management of parking badges for all government personnel. By contrast, Complainant, as a GS-11, was limited to gathering and preparing Personnel Security documentation for all government personnel for Security Clearances. When CW1 left the organization, the Agency decided to realign the position. Management acknowledged that Complainant did handle parking badges for a period of time; however, much of CW1’s former duties were consolidated into Headquarters. 2020003680 9 While some of Complainant’s GS-11 Security Specialist duties may have overlapped with CW1’s GS-12 Security Specialist duties, the undisputed record shows that there were additional distinct duties performed by CW1. We find that Complainant has not shown that she had received lower pay than a male employee for equal work, requiring equal skill, effort, and responsibility. For these same legitimate, nondiscriminatory reasons, we find Complainant's claim of sex-based wage discrimination under Title VII must fail as she failed to demonstrate that these reasons were pretextual. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence does not establish that Complainant was subjected to discrimination or reprisal as alleged. 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. 2020003680 10 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. 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 30, 2021 Date