Rolf K.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 22, 2019

0120180657 (E.E.O.C. Aug. 22, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Rolf K.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120180657

Agency No. DON166115803748

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 September 28, 2017 final
decision (FAD) 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Security Assistant,
GS-0083-06, at the Agency’s Joint Visitors Center (JVC) at the Joint Base Anacostia-Bolling
facility in Washington DC.

On January 4, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (“Negro”2), disability (hearing impairment), and 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.

2 We note that we use the terminology provided by Complainant.
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1. on or about September 19, 2016, Complainant was not issued his retired police
credentials after being medically retired from his previous Police Officer position;
and

2. on or about September 19, 2016, Complainant was not provided an effective
reasonable accommodation as he was placed him in a position that requires
computer skills he does not possess.

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). 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 FAD concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. Specifically, the FAD found that the Agency articulated a legitimate,
nondiscriminatory reason for its action when the Chief of Police (CP: African-American, no
claimed disability) averred that Complainant did receive his retired police credentials, and that
Complainant failed to establish that such an articulated reason was a pretext. The FAD further
found that, with regard to Complainant’s reasonable accommodation claim, Complainant
accepted the reassignment position knowing the requirements of the position and the required
computer skills were no different than those required in his prior position.

The instant appeal followed.

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”).

Disparate Treatment

Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima
facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
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employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

This established order of analysis need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate
issue of whether complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that
Complainant established his prima facie case of discrimination. We next find that the Agency
articulated a legitimate, nondiscriminatory reason for its action when CP averred that
Complainant did receive his retired police officer credentials which consisted of “one badge and
a credential case that says ‘retired’ on it. CP further clarified that, despite Complainant’s belief
that the badge itself should say “retired,” in fact “as long as the credentials say ‘retired’, the
badge doesn't say ‘retired’.” The Agency having articulated legitimate nondiscriminatory reasons
for its actions, the burden shifts back to Complainant to establish, by a preponderance of the
evidence, that the Agency’s reasons were not its true reasons, but were pretexts for
discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we
find that Complainant has failed to meet this burden.

We note initially that Complainant failed to provide a rebuttal statement despite being provided
the opportunity to do so. However, in his initial statement, Complainant listed comparators who
shared some or all of his bases who did receive their retirement credentials, thus weakening his
argument that Agency officials harbored any animus against his race, disability, or prior EEO
activity. We further note that the record shows that none of the management officials named by
Complainant were in fact responsible for issuing the retired officer credentials. Instead, this
function was carried out by the regional office at Washington Navy Yard. Even assuming
Complainant did not receive his credentials, or received incomplete credentials, he does not
allege that anyone at that regional office knew him or was aware of his race, disability, or prior
EEO activity. Complainant has therefore failed to establish that the Agency’s articulated reason
is a pretext, or otherwise show that discrimination occurred.

Denial of Reasonable Accommodation

In order to establish that Complainant was denied a reasonable accommodation, Complainant
must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a
disability; and (3) the Agency failed to provide a reasonable accommodation.
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See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). Upon receipt of a request for
accommodation, the burden is on a “covered entity to initiate an informal, interactive process
with the individual with a disability in need of the accommodation.” 29 C.F.R. §1630.2(o)(3).

The Agency does not dispute that Complainant is an individual with a disability, based on his
hearing loss. Nor does the Agency dispute that Complainant is a “qualified individual with a
disability.” Accordingly, we find that Complainant has established prongs 1 and 2 of the above-
referenced test. With regard to prong 3, the record shows Complainant was provided an
accommodation in the form of a reassignment to a Security Assistant, GS-0083-06, position at
the JVC, which Complainant accepted on or about September 19, 2016.

The Agency EEO Specialist (ES: African American, no claimed disability) averred that she was
the person responsible for engaging in the interactive process with Complainant. ES averred that
once it was determined that Complainant could no longer continue in his Police Officer position
and that he needed a reassignment, his resume and other details were sent to the Human
Resources Office “to do the job search for vacant positions. On August 25, 2016, [Complainant]
was issued a letter offering him a position. It included the location, salary, and start date. He
accepted the position.” The Human Resources Specialist (HRS: African American, no claimed
disability) averred that “I did a job search. He had already been moved over to security so he had
already been working there. I did a job search and we moved him over permanent.” HS denied
any knowledge of Complainant’s race or prior EEO activity. The position description for
Complainant’s Security Assistant, GS-0083-06, position noted that the requirements included:

[I]nterfacing with the Defense Travel System (DTS) or successor system and
processing travel requests; assisting with travel arrangements; assisting with
travel vouchers; preparing and distributing correspondence, messages. and
facsimiles to include review, log, date stamp, and tracking of incoming and
outgoing correspondence; maintaining file plans and files to include
accountability for classified material . . .

Complainant averred that the position included computer skills such as “Windows, Powerpoint,
Keyboarding, being able to look into folders and use programs that are designed to gather the
information necessary to allow people to come on the base.” Complainant maintains that he told
ES and HRS that he did not possess these skills and that they told him to take online courses and
that he could also receive training internally. Complainant averred that he asked for such training
but that “I can't remember their response.” The record thus shows that Complainant accepted the
position knowing the requirements, and that the Agency was willing to give Complainant time to
learn the required skills on his own or with the help of the Agency. We therefore find that
Complainant has not shown that he was denied a reasonable accommodation.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not shown that discrimination
occurred, and we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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

August 22, 2019
Date