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

Equal Employment Opportunity Commission

Feb 26, 2019

0120173003 (E.E.O.C. Feb. 26, 2019)

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

Carter R.,1
Complainant,

v.

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

Appeal No. 0120173003

Hearing No. 530-2016-00081X

Agency No. DON-15-3790A-00895

DECISION

On September 6, 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
August 4, 2017, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS-
0083-05, at the Agency’s Naval Inventory Control Point facility in Mechanicsburg,
Pennsylvania.

Believing that he was subjected to discrimination, Complainant contacted the EEO Counselor.
On April 20, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of age (63) when:

1. his request for a reasonable accommodation to perform the agency’s Physical
Agility Test (PAT) using a treadmill was denied; and

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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2. he was scheduled and required to take the PAT on November 19, 2014 based on
his position description (“AA657”) and policy CNIC 5530.14A, while his prior
position description (“L8143-235117”) did not mention the PAT.

The evidence developed during the investigation of the complaint shows that on November 19,
2014, Complainant was scheduled by management to take the PAT based on his position
description (AA657) and Agency policy (CNIC 5530.14A). A portion of the PAT requires an
employee to either run one and a half miles in 17 minutes and 30 seconds. In the alternative, the
employee can walk two miles in 32 minutes and 30 seconds. The test instructions indicated that
the test is to be done on a flat surface or track/marked road course.

In response to the request, Complainant submitted a memorandum dated November 21, 2014,
requesting three items: a request to use a treadmill to complete the run/walk portion of the test; a
copy of his position description; and his rights under the Americans with Disabilities Act.
Complainant indicated that he could pass the walking/running portion of the test. However, he
was concerned with the principle of the test. He noted that he had been diagnosed with arthritis
in his hips and back. As such, he would rather do the test on a treadmill, rather than a hard
pavement. Complainant also asserted that he should not have been scheduled to or required to
take the PAT.

The matter was referred by Complainant’s Supervisor (49 years old at the time) to the Security
Director, and finally to the Deputy Director of Regional Security. The EEO Manager sent the
Supervisor the reasonable accommodation forms to provide to Complainant. On December 3,
2014, the Supervisor provided the reasonable accommodation forms to Complainant.
Complainant did not return the forms to the EEO Manager or any documentations as requested
on the forms. When Complainant failed to provide the documentation, the EEO Manager
forwarded to the Supervisor a letter denying Complainant’s request. The denial of reasonable
accommodation was issued to Complainant on February 20, 2015.

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 requested a hearing.

Prior to the hearing, the Agency filed a motion to compel Complainant to comply with
discovery. On April 21, 2017, the AJ issued an order granting the Agency’s motion and
directing Complainant to respond to the Agency’s motion within 10 days of the date of the order.
On April 28, 2017, Complainant provided his response to the Agency’s request for admissions.
However, he refused to respond to the admission requests.

Subsequently, the Agency filed a motion for sanctions and summary judgment indicating that
Complainant refused to respond to the request for admission citing the Fifth Amendment of the
Constitution. In response, the AJ issued a June 1, 2017 Order to Show Cause. Complainant
responded to the AJ’s Show Cause Order on June 6, 2017. He provided his responses to the
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request for admissions. The AJ found Complainant’s submission to the request for admissions to
be untimely. Furthermore, the AJ noted that Complainant failed to respond to the AJ’s Order
explaining why he failed to respond to the AJ’s order dated April 21, 2017. Based on
Complainant’s failure to respond to the AJ’s Show Cause Order and the untimely response to the
AJ’s order dated April 21, 2017, the AJ dismissed Complainant’s hearing request.

The AJ remanded the complaint to the Agency, and 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.

This appeal followed. On appeal, Complainant asserted that the AJ erred in dismissing his
hearing request. Complainant argued that he was timely in his filing of his admissions on June 2,
2017. Complainant claimed that the AJ failed to address his assertion of his 5th Amendment
Rights. Complainant also indicated that he is pro se and has tried to comply with the AJ and to
establish that the Agency’s actions constituted discrimination based on age in violation of the
ADEA. He argued that the Agency’s policy does not accommodate individuals over the age of
40. Therefore, he asked that the Commission issue a ruling on his alleged claim of his 5th
Amendment Rights.

The Agency asked that the Commission affirm its final decision finding no discrimination.

ANALYSIS AND FINDINGS

Standard for Review

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”).

Sanction by the AJ

As an initial matter, we must determine whether the AJ abused his discretion in dismissing the
hearing based on Complainant’s failure to respond to the AJ’s orders. In general, the
Commission has held that sanctions, while corrective, also can prevent similar misconduct in the
future and must be tailored to each situation, applying the least severe sanction necessary to
respond to the party's failure to show good cause for its actions, as well as to equitably remedy
the opposing party. See Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007);
Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001); Hale v. Dep't
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of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission's interest lies in
deterring the underlying conduct of the non-complying party, and protecting its administrative
process from abuse by either party to ensure that agencies, as well as complainants, abide by its
regulations. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25,
2009).

Complainant asserted that he timely responded with his admissions which he filed on June 2,
2017. We disagree as that Complainant’s June 2017 submission was in response to the AJ’s
order dated April 21, 2017. Complainant’s initial submission did not adequately respond to the
Agency’s requests for admissions. Further, as to his June 2017 submission, it was unresponsive
to the AJ’s Order to Show Cause. Complainant did not provide any reason why he failed to
comply with the AJ’s Orders from April 2017 and June 2017. As such, we find that the AJ’s
dismissal of the hearing was an appropriate sanction based on Complainant’s failure to comply
with the AJ’s Orders.

Reasonable Accommodation – Claim (1)

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. See 29 C.F.R.
§§ 1630.2(o) and (p). Appropriate accommodations might include job restructuring,
reassignment to a vacant position, acquisition or modifications of equipment or devices,
appropriate adjustment or modification of examinations, training materials, or policies, the
provision of qualified readers or interpreters, and/or part-time or modified work schedules. See
29 C.F.R. § 1630.2(o)(ii).

In order to establish that the Agency unlawfully denied him 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 Enforcement Guidance:
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,
EEOC No. 915.002 (Oct. 17, 2002) (Enforcement Guidance).

In the instant case, Complainant alleged that he was denied a reasonable accommodation on the
basis of age. Complainant stated that he has arthritis. The record indicated that the Agency
asked that he provide forms and medical documentation to support his request for a reasonable
accommodation. Complainant admitted that he failed to provide it. As here, if an individual's
need for reasonable accommodation is not obvious, and the person refuses to provide reasonable
documentation requested by an employer, then the individual is not entitled to the requested
accommodation. Scott v. U.S. Postal Serv., EEOC Request No. 0520130084 (April 16, 2013)
(citing Hunter v. Social Security Admin., EEOC Appeal No. 0720070053 (Feb. 16, 2012)).

Further, he specifically stated that he should have been provided a reasonable accommodation
under the ADEA. We note that the Agency is not obligated to provide a reasonable
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accommodation under the ADEA. Therefore, we find that Complainant has not shown that the
denial of the use of the treadmill constituted a violation of the law.

Disparate Treatment – Claims (1) and (2)

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she must first 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 employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, 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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

As to claim (1), Complainant asserted that he was denied a reasonable accommodation. The
Agency provided legitimate, nondiscriminatory reason for denying his request. Specifically, the
Agency provided Complainant with forms to fill out to support his request for a reasonable
accommodation. However, when Complainant failed to return the forms to the Agency, the
Agency denied his request. We find that Complainant has not shown that the Agency’s reason
was pretext for discrimination based on age with respect to claim (1).

As to claim (2), Complainant asserted that he was subjected to disparate treatment when he
scheduled and required to take the PAT exam. The Deputy Director averred that the Agency’s
policy, dated May 13, 2013, provides the requirements of the PAT. He noted that the PAT is
important to show that the employee is physically fit to perform the rigorous activities required
by the position to protect life and property of the installation. He noted that when Complainant
was hired, the position description did not require the PAT. However, the Agency transferred
the Security Department into the Commander, Navy Installations Command (CNIC), on October
7, 2012. In addition, in April 2012, the Agency had an agreement with another Agency that they
would set the standards. As such, the position description for the position of Police Officer was
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changed in September 2012 to include the PAT. He averred that the PAT is required of
Complainant as it is with all Police Officers within the CNIC. Upon review, we find that the
Agency has provided legitimate, nondiscriminatory reasons for its action. We find that
Complainant has failed to establish that this legitimate, nondiscriminatory reason is pretext for
discrimination based on age.

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 finding no
discrimination.

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.
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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 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

February 26, 2019
Date