Ike D.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 17, 2019

0120181797 (E.E.O.C. Sep. 17, 2019)

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

Ike D.,1
Complainant,

v.

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

Appeal No. 0120181797
Hearing No. 16-00242-01049
Agency No. DON150024602692

DECISION

On May 4, 2018, 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
April 2, 2018, final decision 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

Whether Complainant was discriminated against on the bases of disability (physical) and reprisal
when, on January 26, 2016, he was issued a three (3) day suspension from February 9, 2016 to
February 11, 2016.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Marine Machinery
Mechanic, WG-5534-10 at the Agency’s Regional Port Operations, Navy Region Southwest
facility in San Diego, California. On March 9, 2016, Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the bases of disability (physical) and reprisal for
prior protected EEO activity when he was suspended for three absences that took place on October

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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19, 2015, November 12, 2015, and November 13, 2015. Complainant’s suspension was handled
by S2, his second level supervisor, and by S3, the Regional Marine Maintenance Manager.2

In regard to his suspension in February 2016, Complainant asserted that although he was unable
to provide medical documentation to support his absences on October 19, 2015, November 12,
2015, and November 13, 2015, he called S2 as required. Complainant maintained that when he
was absent, it was due to taking narcotics such as pain medication and muscle relaxants to treat
his pain. Complainant explained that when he took the medication, he was unable to operate a
motor vehicle. Complainant asserted that he was also unable to drive to his doctor’s office to
obtain medical documentation to support his absences on October 19, 2015, and November 12,
2015. However, he subsequently provided S2 with medical documentation for his absence of
November 13, 2015, but not when it was requested. Complainant maintained that he felt it was
inappropriate that a September 2015 Letter of Requirement resulted in discipline and obligated
him to obtain documentation to support his absence because he could not drive to the doctor’s
office.

The evidentiary record included Complainant’s Letter of Requirement, dated September 9, 2015,
issued by S2, which indicated, in relevant part, that Complainant’s attendance was unsatisfactory,
as most of the leave he took was unscheduled. Complainant was advised that the failure to
improve his attendance could result in his removal from employment. Complainant was
instructed to provide medical documentation for all requests for sick leave and directly contact
S2 within two (2) hours after the beginning of his shift for absences due to emergency illness.

The record included Complainant’s Notice of Proposed Five (5) Calendar Day Suspension, dated
December 1, 2015, issued by S2, which indicated that on October 19, 2015, November 12, 2015,
and November 13, 2015, Complainant called out on sick leave and was instructed to submit
required medical documentation. However, as of the date of the proposed suspension, the
record indicates that Complainant had not complied; therefore, he was charged as being
Absent Without Leave (AWOL) for the dates at issue. S2 cited the Civilian Human Resources
Manual, Subchapter 752, Disciplinary Actions, and the September 9, 2015, Letter of Requirement
as references.

The record also included the Decision on Proposed Suspension, dated January 26, 2016,
issued by S3, which indicated in relevant part that he reduced the five (5) day proposed
suspension to three (3) days, and indicated that Complainant would be suspended from
February 9, 2016, through February 11, 2016. S3 noted that during Complainant’s January
14, 2016, oral reply to the proposed suspension, he provided medical documentation partially
supporting his absence on November 13, 2015; however, he did not provide any additional
information as to why he continued to fail to adhere to the leave procedures in requesting,
reporting and documenting leave taken.

2 Complainant’s immediate supervisor was not involved in this matter.
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Complainant also provided statements to S2 and S3 regarding his belief that other employees took
time off to address personal medical issues. S2 and S3 stated that the individuals identified by
Complainant were not similarly situated to his situation because those individuals provided
medical support for each absence.

S2 and S3 also cited employees who had excessive absences but who were issued Letters of
Warning (LOW). Both indicates that those employees addressed their absences and eliminated
the need for management to take further action. S2 and S3 stated that no other employee had an
amount of absences equal to Complainant.

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, but the
AJ dismissed the hearing request and remanded the complaint to the Agency to issue 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.

CONTENTIONS ON APPEAL

Although Complainant was given an extension of time to file a statement or brief in support of his
appeal, no such statement was ever filed.

The Agency also did not submit a statement.

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

To prevail in a disparate-treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Construction 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.
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The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t 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 Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing
that the proffered explanations are unworthy of credence or that a discriminatory reason more
likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated
reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
disability and reprisal, we find that the Agency presented legitimate, nondiscriminatory reasons
for its actions with regard to Complainant’s suspension because of his excessive absences and
failure to timely provide medical support for the three absences at issue. Complainant did not
provide persuasive evidence that the Agency’s reasons were a pretext for discrimination.
Accordingly, we do not find that Complainant was discriminated against based on disability and/or
reprisal.
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
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.
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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
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 17, 2019
Date