Starr R.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 14, 2018

0120171773 (E.E.O.C. Dec. 14, 2018)

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

Starr R.,1
Complainant,

v.

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

Appeal No. 0120171773

Agency No. DON166268801326

DECISION

On April 20, 2017, 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
March 22, 2017, 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 the Assistant Director,
NF-1702-03, of the Willoughby Child Development Center at Naval Station Norfolk in Virginia.

On April 22, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), national origin (American), religion
(Christian), color (brown), disability (depression and anxiety), age (51), and reprisal (prior EEO
activity on February 16, 2014) under Title VII of the Civil Rights Act of 1964 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.
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1) In August 2015, on December 28, 2015, and on February 17, 2016, management did
not support her decision to address employee performance deficiencies or manage time
and attention;

2) In September 2015, management did not admonish an employee about leave usage,
but on February 28, 2014, she was orally admonished for the same infraction;

3) From September 2015 to March 23, 2016, management did not include her in
communications, communicated with her through other employees, blatantly ignored
and disregarded her, but engaged with other employees, spoke to her in a
condescending and demeaning manner, and informed others about organizational
actions, but did not advise her, with the latest incident occurring on March 4, 2016; and

4) From November 2015, to the date of filing, management assigned higher level work to
other employees while relegating her to nominal administrative tasks, and from
December 2015, to the date of filing, management assigned her supervisory
responsibilities (e.g., creating work schedules) to her subordinate employees.

The Agency accepted the claims for investigation on May 20, 2016. Thereafter, in early October
2016, Complainant advised the Agency that she wished to amend her complaint to include a claim
of reprisal when:

5) On October 5, 2016, she was denied a reasonable accommodation.

The Agency accepted the amended claim for investigation on November 2, 2016. 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 Equal Employment Opportunity Commission
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

On March 22, 2017, the Agency issued a final decision, finding no discrimination. In so finding,
the Agency determined that the allegations in claims (1) to (4) were insufficiently severe or
pervasive to constitute harassing behavior because such matters were within the normal scope and
course of working relations between supervisors and their employees. As for claim (5), the Agency
noted that Complainant’s supervisors initially placed her on light duty status after she informed
them of her medical inability to drive at night (restricted to daytime shift). The Agency explained,
however, that it could not permanently accommodate her restricted schedule because other
managers would have to work split shifts and/or incur overtime in order to open and close the
facility each day. The Agency averred that it offered to reassign Complainant to a different
position as an accommodation, but she subsequently informed them that an accommodation was
not needed because she had been prescribed with glasses with antireflective coating. The Agency
concluded that Complainant failed to demonstrate pretext with regard to management’s articulated
reasons or show that the denial of her reasonable accommodation request amounted to
discrimination.
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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”).

To establish a claim of hostile work environment, 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; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been “sufficiently severe
and pervasive to alter the conditions of Complainant's employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v.
Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).

With regard to Complainant’s allegation that she was subjected to harassment, we will assume
arguendo that the events occurred as Complainant described and were unwanted. However, the
preponderance of the evidence does not show that the alleged instances of harassment had the
purpose or effect of unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment. She has also not shown that the alleged
instances of harassment were related to her protected bases. In so finding, we acknowledge that
Complainant’s supervisor may have removed some of her duties and excluded her from job related
matters; however, the Agency articulated legitimate, nondiscriminatory reasons for these actions.
Regarding the removal of duties, the record reflects that management removed some of
Complainant’s duties because her new assignments were very time consuming (i.e., management
wanted to balance her duties). Additionally, the record reflects that Complainant had difficulty
interacting with parents, thereby necessitating a change in duties. As to Complainant’s contention
regarding her exclusion from job related matters, we note that she had a very strained relationship
with her supervisor due to a clash of personalities. Due to this interpersonal conflict,
Complainant’s supervisor took steps to avoid her such as delegating work to other people.
Accordingly, we agree with the Agency that the preponderance of the evidence suggests that the
alleged instances of harassment were related to her job duties and/or conduct, rather than her
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protected characteristics. Most importantly, Complainant has not shown that any of the actions
that constituted the alleged harassment were motivated by discrimination.

Even if we treat claim (5) as a discrete act of discrimination on the basis of reprisal, we still find
no discrimination. In so finding, we acknowledge Complainant’s contention that she did not make
a reasonable accommodation request; however, we note that an agency has an affirmative duty to
reasonable accommodate the known physical and mental limitations of a qualified individual with
a disability, unless the agency can show that accommodation would cause undue hardship. See 29
C.F.R. § 1630.2(o) and (p). The record reflects that the Agency took appropriate steps to
reasonably accommodate Complainant’s disability after being informed of her condition. We agree
with the Agency that there is no evidence in the record to suggest any discriminatory motivation
on part of any Agency official in responding to Complainant’s request for reasonable
accommodation.

We also acknowledge Complainant’s contention that her supervisor accommodated three
individuals without having them file paperwork, but we find such contention to be unpersuasive
because the comparators were not similarly situated. Generally, an employer may ask an individual
for reasonable documentation about that person's disability and functional limitations when the
disability or need for accommodation is not obvious. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC No. 915.002 (October 17, 2002) at 12-13; see also Complainant v. Social Security
Administration. EEOC Appeal No. 0720070053 (February 16, 2012). In the three comparator
examples cited by Complainant, management provided larger chairs to individuals who were either
too tall or heavy for standard size chairs. Unlike the comparator examples who had visible
limitations (i.e., could not fit in a standard size chair due to height or weight), the functional
limitations associated with Complainant’s visual disability were not obvious to reasonable
observers. Consequently, we find that the preponderance of the evidence does not support a
finding of discrimination in this regard.2

The Commission has long held that an Agency has broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by the reviewing authority absent evidence
of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981);
Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Based on the
totality of the record, we find that Complainant has failed to fulfill her burden of showing that the
Agency’s actions were sufficiently severe or pervasive to constitute a hostile work environment or
that the Agency’s articulated reasons were pretext for discrimination.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

2 We also note that Complainant’s contention that her supervisor accommodated three individuals
without having them file paperwork is unsupported by the record, as there is no clear indication as
to whether those individuals filed paperwork.
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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. 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.
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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

December 14, 2018
Date