Darlena H., Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 15, 2017

0120152014 (E.E.O.C. Sep. 15, 2017)

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

Darlena H.,
Complainant,

v.

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

Appeal No. 0120152014

Agency No. 13-00183-02011

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 21,
2015, final decision concerning her 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

Complainant worked as a Health Technician at the Agency’s Medical Center in Portsmouth,
Virginia. On August 26, 2013, Complainant filed an EEO complaint in which she alleged that
the head of the Substance Abuse Rehabilitation Program, her second-line supervisor (S2),
discriminated against her on the basis of disability (numerous physical and mental conditions)2

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 Physical impairments that Complainant identified included: irritable bowel syndrome;
migraine headaches; multiple joint pain; abdominal pain; gynecological problems; allergies,
chronic infections; chronic inflammatory disorder; and impaired immune system response.
Investigative Report (IR) 330. Mental impairments identified by Complainant included: memory
loss; inability to concentrate; difficulty retaining information; depression; anxiety; post-traumatic
stress disorder; obsessive compulsive disorder; and adjustment disorder. IR 331-33.
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by cutting off her access to her computer on May 16, 2013, and by denying her request for leave
without pay (LWOP) on June 10, 2013.

Complainant averred that on May 6, 2013, S2 notified her that she would no longer have access
to her computer, and that her access was cut off on May 16, 2013. IR 333. When asked about
the incident, S2 responded that he had notified Complainant on numerous occasions that she was
required to complete an annual training on information assurance that took no more than thirty
minutes, and that she repeatedly refused to do so. IR 338. Complainant stated that neither S2
nor anyone else in the Agency offered to assist her in taking the training. She also admitted that
she did not feel comfortable with someone helping her because she did not want others to
become aware of her physical and mental conditions. IR 333. S2 averred that Complainant was
given a significant amount of time to complete the training, and that after her computer access
was cutoff, it was restored for an additional 72 hours so that she could finish, but she still had not
done so. He also averred that Complainant was offered assistance on several occasions. IR 339.
Complainant’s immediate supervisor stated that Complainant never asked for any assistance to
complete the training. IR 351.

Complainant averred that on June 10, 2013, S2 had placed Complainant in “unauthorized
absence” (UA) status after Complainant had notified him that she would be out of work for an
extended period of time and asked to be placed on LWOP. IR 334. In an email to Complainant
dated June 13, 2013, S2 explained that the Directorate of Mental Health made the decision, based
upon its review of Complainant’s medical documentation, that there was no reasonable
expectation that Complainant would be able to return to work in the foreseeable future. IR 336.
S2 averred that he had received notes from Complainant’s physician indicating that she would be
able to return to work, and that he had also received notes from her clinical social worker
indicating that she could not. S2 and Complainant’s immediate supervisor both averred that they
had received information from the Human Resources Office on or around June 12, 2013,
indicating that Complainant’s application for disability retirement was in process, and that as a
result, Complainant’s UA status was changed to LWOP. IR 339-41, 351.

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). On March 17, 2014, Complainant
requested a final Agency decision. In accordance with Complainant’s request, the Agency
issued its 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
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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 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). She must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

The prima facie inquiry may be dispensed with in this case since S2 provided legitimate and
nondiscriminatory explanations for Complainant’s loss of computer access and placement into
UA status.3 See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
S2’s stated reason for revoking Complainant’s computer access is that she refused to complete
the required information assurance training despite being given many opportunities to do so. As
to the LWOP incident, Complainant’s status was changed from UA to LWOP after S2 was
notified by the Human Resources Office that Complainant had submitted an application for
disability retirement. Complainant may now demonstrate pretext by showing such weaknesses,
inconsistencies, or contradictions in S2’s proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S.
Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration
denied, EEOC Request No. 0520080211 (May 30, 2008).

When asked by the EEO investigator why she believed that her physical and mental conditions
were motivating factors in her loss of computer access and placement in UA status, Complainant
stated that S2 and other Agency officials were aware of those conditions as well as their severity.
IR 333-34, 350. Beyond these bare assertions, however, Complainant presented no affidavits,
declarations, or unsworn statements from witnesses other than herself nor documents that
contradict the explanations put forward by S2 or which call S2’s veracity into question. On
appeal, Complainant argues that the Agency failed to address a reasonable accommodation claim
that she had raised in her formal complaint. Complainant’s Appeal Statement, pp. 3-4.
However, Complainant neither objected to the way the Agency framed her claim in its letter of
acceptance nor requested a hearing. Moreover, the Agency did attempt to provide Complainant

3 We assume that Complainant is an individual with a disability, and note that the Agency found
as such.
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with a reasonable accommodation, but Complainant refused to provide medical documentation
after being requested to do so at least four times and had refused an accommodation that the
Agency did offer. IR 247-50, 292-327. We therefore find, as did the Agency, that Complainant
has not established that S2 had unlawfully considered her disabilities in connection with the
incidents set forth in her complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that she was discriminated
against.

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

September 15, 2017
Date