Brad M.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 29, 2019

0120172252 (E.E.O.C. Mar. 29, 2019)

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

Brad M.,1
Complainant,

v.

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

Appeal No. 0120172252

Agency No. 166238101075

DECISION

On June 14, 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
May 12, 2017, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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 Civilian Mariner,
Chief Radio Electronics Technician (CRET), WM-9995-10, with the Military Sealift Command in
Norfolk, Virginia.

Complainant entered duty with the Agency in July 2001. Complainant was assigned to various
ships while employed with the Agency and when he was not assigned to a ship he was physically
located at the Customer Service Unit commonly referred to as the “pool” where Civilian Mariners
remained until they were assigned or trained.

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.
0120172252

2
Complainant has the condition of morbid obesity. Complainant stated that his condition did not
result in any limitations in any major life activities but added that he could not use a safety harness
at work because his weight exceeded the maximum weight limit for the harness.

In September 2013, the Agency issued HR Advisory (HRA) 2013-3 setting a new policy
establishing physical requirements for Civilian Mariners for the fall protection safety equipment
used to carry out the essential functions of their positions. HRA 2013-3 set a maximum weight
standard for employees of 295 pounds. Employees were given a 12-month grace period to comply
with the standard. HRA 2013-3 was issued to address fall protection as employees needed to wear
the proper safety equipment on ships while “aloft.”

Complainant claimed that he requested reasonable accommodation on several occasions in June
or July 2012. First, Complainant requested that the Agency purchase a second seat when flying
due to his discomfort with the width of airplane seats. The Agency initially denied his request, but
subsequently agreed to the arrangement. Additionally, Complainant requested that he not be sent
to a west coast ship where he would have to work on the deck for an extended time due to his
inability to tolerate exposure to the light and heat due to his fair skin. Agency management
requested additional documentation in support of this request. Complainant affirmed that he spoke
with different doctors who counseled him regarding sunscreen, ice packs, and other
recommendations and returned him to work. As a result, the reasonable accommodation request
was withdrawn as not needed based on Complainant no longer having the limitations.

Complainant alleged that he was repeatedly sent to various training that management knew in
advance that he would be unable to complete due to not having the necessary safety equipment in
his size. Complainant identified the Standards and Training in Certification of Watchstanders
training. Complainant claimed that he could not complete the firefighting portion because they
did not have a fire jacket and pants in his size. Further, Complainant stated that he did not climb
into the raft during training because it was frightening for him to be in the water and he is
claustrophobic. As a result, Complainant failed the training. Complainant alleged that
management sent him back to the training again without the proper fitting equipment and he failed
part of the class. Management attempted to send Complainant a third time, however it was
canceled. An administrative notation of “pending disciplinary status” was entered in the Agency’s
system based on Complainant’s failure to complete the training, and it was noted that he could not
be assigned to a ship.

In August 2015, Complainant submitted a third reasonable accommodation request based on his
inability to meet the Agency’s new weight requirement announced under HRA 2013-3.
Complainant had previously learned of the policy in 2013 and had requested accommodation at
that time. The Agency, however, established a 12-month grace period to allow employees to
comply with the new policy. By August 2015, Complainant was not in compliance with the policy.
Complainant stated that he submitted a doctor’s note diagnosing him as morbidly obese, that he
would not be able to meet the weight standard, recommending a reasonable accommodation.
Complainant claimed that he believed that management was attempting to terminate his
employment because he was not compliant.
0120172252

3
Complainant requested reassignment to “a job ashore because [he] knew [he] was never going to
able to lose over 100 pounds.” Complainant indicated that he had problems with the proper and
necessary safety and firefighting equipment. The Agency’s Reasonable Accommodation Program
Manager began a job search to determine whether there was a position for which Complainant was
qualified to which he could be reassigned. Complainant was informed that he could remain on
site on duty status or use leave or leave without pay while the job search was being conducted.

On September 15, 2015, Agency management issued Complainant a Notice of Proposed Removal
based on his failure to maintain a condition of employment. The Notice noted that in September
2013, the Agency notified all employees of the new maximum weight standard of 295 pounds.
Employees were given a 12-month grace period to meet this standard. The Notice stated that
Complainant had been reminded of the policy in January 2015, of the weight requirement. As of
August 19, 2015, Complainant’s weight still exceeded the weight requirement. As a result, the
Agency issued Complainant the Notice of Proposed Removal.

The record indicates that officials continued to search for a vacant position for which Complainant
was qualified and that he could perform. On February 1, 2016, Agency management informed
Complainant that, based on all of information available, he was not a qualified individual with a
disability as there was no accommodation available that would enable him to perform the essential
functions of his position. The Agency’s Reasonable Accommodation Committee continued to
search for a suitable position for Complainant. The Reasonable Accommodation Program
Manager subsequently located a suitable position in June or July 2016, but Complainant informed
her that he had accepted a position with another agency.

On May 19, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the bases of disability (morbid
obesity) and in reprisal for prior protected EEO activity when:

1. Complainant was denied two requests for reasonable accommodation by the Deck
Placement Branch Head/Engine Placement Branch Head/CIVMAR Placement
Director (BH/CIVMAR PL DIR);

2. Complainant received a Proposed Notice of Removal regarding HRA 2013-3
Weight Restriction;

3. Complainant was repeatedly sent to various training knowing in advance he would
be unable to complete the training because they did not have the necessary safety
equipment in his size; and

4. Marine Placement Specialist (MPS) placed Complainant in "Pending Disciplinary
Status" for not completing the training he was sent to, which did not have the safety
equipment in his size.

0120172252

4
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) 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 decision concluded that Complainant failed to prove
that the Agency subjected him 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

Under the Commission's regulations, an agency is required to make reasonable accommodation to
the known physical and mental limitations of an otherwise qualified individual with a disability
unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. §
1630.9. In order to establish that Complainant was denied a reasonable accommodation,
Complainant must show that: (1) he is an “individual with a disability,” as defined by 29 C.F.R.
§1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. §1630.2(m);
and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002). The Commission will assume arguendo that
Complainant is an individual with a disability.

Complainant contends that his first two formal reasonable accommodation requests were
improperly denied. The record indicates, however, that the first accommodation Complainant
requested was granted and the second request was withdrawn. First, Complainant requested that
when his duties required him to travel by air, the Agency purchase two adjacent airline seats to
accommodate the width of his body. The Agency ultimately agreed to this arrangement. ROI, at
271.

The second reasonable accommodation request Complainant made related to the sensitivity of his
skin to sun exposure. Complainant requested that he be permitted to work in areas where he would
not be exposed to direct sunlight. ROI, at 252-54. Record evidence indicates that Complainant
withdrew this request as it was no longer needed. ROI, at 273-74.

0120172252

5
Finally, with regard to Complainant’s August 2015 request for reassignment as a reasonable
accommodation due to his inability to meet the Agency’s weight standard, the record indicates that
all employees were initially given a 12-month grace period to meet the new weight standard in
HRA 2013-3. ROI, Investigative Transcript, at 81. Complainant was reminded in January 2015,
of the weight requirement and that he was not yet in compliance. In August 2015, Complainant
requested reassignment to a position ashore. The Agency informed Complainant that efforts to
find him a position to which he could be reassigned “are underway.” ROI, at 319. The Agency
informed Complainant that he could report to the assignment pool or use leave or leave without
pay while management conducted a job search for him. Management met with Complainant on
several occasions to discuss his request and determine whether a position could be located for
which he was qualified, including 30-day; 60-day; and continuing job searches. In July 2016, the
Agency contacted Complainant to inform him that a suitable position had been located within the
Agency. ROI, at 564. In response, Complainant indicated that he was not interested in the
reassignment because he had “tentatively accepted” a position with the Air Force. ROI,
Investigative Transcript, at 196-202.

Because Complainant did not identify any accommodations that would have enabled him to meet
the weight standard necessary to perform the essential functions of his position, the only possible
accommodation in this case would have been to reassign Complainant to another position. EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans
With Disabilities Act, No. 915.002 (revised Oct. 17, 2002); see also Interpretive Guidance on Title
1 of the Americans with Disabilities Act, Appendix, to 29 C.F.R. Part 1630.2(o). Complainant has
an evidentiary burden in such reassignment cases to establish that it is more likely than not that
there were vacancies during the relevant time-period into which he could have been reassigned.
Complainant can establish this by producing evidence of specific vacancies. See Hampton v. U.S.
Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002). In the alternative, Complainant need
only show that: (1) he was qualified to perform a job or jobs which existed at the agency, and (2)
there were trends or patterns of turnover in the relevant jobs that made a vacancy likely during the
time-period. Id.

Here, the record demonstrates that management made good faith efforts to find Complainant a
suitable position for which he was qualified. Complainant was informed he could remain on site
in duty status or use leave or unpaid leave while a job search was conducted. The record is devoid
of evidence that there was a vacant, funded position for which Complainant was qualified to be
reassigned during this time period. When a position was located, Complainant informed
management that he had accepted a position at another agency. In light of the foregoing, we find
that the Agency did not deny Complainant 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 (1973). He must generally establish a prima facie case by demonstrating that he was
0120172252

6
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No, 05950351 (Dec. 14, 1995).

With regard to claim (2), as discussed above, in September 2013, the Agency issued a notice that
personnel whose duties required the use of a safety harness known as the Fall Protection Arrest
System would be required to conform to certain physical standards, including a weight limitation
of 295 pounds. Complainant’s weight exceeded that limit when the rule was promulgated in 2013
and continued to exceed it until, on September 15, 2015, he was issued a notice of proposed
removal because of his failure to comply with the weight requirement. ROI, at 495-99. The
Agency took no action with respect to the proposed removal action pending the resolution of
Complainant’s reasonable accommodation request. The Agency’s efforts to find a reasonable
accommodation appear to have been undertaken in good faith. When Complainant rejected the
proposed accommodation, the Agency’s obligation under the Rehabilitation Act to make any
further efforts was terminated.

Finally, with regard to claims (3) and (4), Complainant contends that he was discriminated against
when he was required to undergo firefighting training and when he was placed in “pending
disciplinary” status for failing to satisfactorily complete that training. According to Complainant,
he was unable to pass the training because the equipment, including a “fire jacket and pants” did
not fit him. The Agency explained that the training in question was required of all employees in
Complainant’s position. ROI, Investigative Transcript, at 139. The Agency repeatedly required
Complainant to attend the training in the hope that he had succeeded in losing enough weight to
fit into the test equipment. His placement in “pending disciplinary” status did not constitute a form
of discipline but rather was part of an “administrative tickler” system of reminders to assure that
all employees had completed required training. ROI, Investigative Transcript, at 140.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant failed to timely request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. The Commission finds
no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's
actions. At all times, the ultimate burden remains with Complainant to demonstrate by a
0120172252

7
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 failed to carry
this burden. Accordingly, we find that Complainant has not established that he was subjected to
discrimination or reprisal as alleged.

Hostile Work Environment

Finally, to the extent that Complainant alleged that he was subjected to a hostile work environment
based on the incidents alleged, the Commission finds that under the standards set forth in Harris
v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment
must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 3, 1994). Complainant's harassment claim fails based on the Commission's finding
that he failed to establish that any of the actions taken by the Agency were motivated by
discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No.
01932923 (Sep. 21, 2000).

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 (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
0120172252

8
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.
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

0120172252

9
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

March 29, 2019
Date