Joseph B.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionJun 29, 20180120162015 (E.E.O.C. Jun. 29, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joseph B.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120162015 Agency No. 15-67100-00046 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated May 5, 2015, finding no discrimination regarding his 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Materials Expediter, WG-07, at Shop M9A, Materials Maintenance Division, Marine Depot Maintenance Center, Marine Corps Logistics Command in Albany, Georgia. On January 13, 2015, Complainant filed his complaint, which was later amended, alleging discrimination based on race (African-American), color (black), age (over 40), disability (bronchitis and asthma), and in reprisal for prior EEO activity when: (1) On September 16, 2014, he was removed from an area that was free of harmful chemicals and dust and placed in an area that was not free of harmful chemicals and dust; 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. 0120162015 2 (2) On September 18, 2014, the harmful chemicals and dust caused a negative reaction to a preexisting medical condition which required him to seek medical attention; and (3) In September 2014, he was forced to seek medical retirement (constructive discharge) when his supervisor told him that they had no work for him to do and that he would be released from Federal service in 30 days. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. 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 (EEO MD-110), Chap. 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"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. At the relevant time, Complainant was employed as a Materials Expediter. Complainant indicated that he had bronchitis, asthma, and reactive airway disease since 2009. The record indicates that Complainant previously submitted medical documentation indicating that he was diagnosed with reactive airway disease and bronchial asthma as a result of being exposed to chemicals and gases in his work environment and that he was a chronic smoker. Complainant indicated that he had approved and utilized Family Medical Leave Act (FMLA) leave since 2009. Regarding claim (1), Complainant’s then supervisor (S1) indicated that when on September 4, 2014, S1 was issuing him a letter of reprimand for not being at the appointed place of duty, he complained to S1 that he was working outside of his position duties as a Demilitarization Clerk doing disposal work and not Expeditor work. S1 agreed with Complainant. S1 however indicated that she did not make the decision to move Complainant to another supervisor (S2) during the time at issue; rather it was Complainant’s third level supervisor’s (S3) decision because Complainant no longer wanted to work for S1. S1 indicated that Complainant never complained that he was subjected to harassment by her. 0120162015 3 Complainant indicated that while he was working for S1, S1 harassed him in that she cut down on the overtime and asked him why work was not getting done, what he was doing during overtime, and to keep track of his work. Complainant stated that he did not tell S1 that he felt harassed by S1. S3 indicated that he assigned Complainant to work for S2 because Complainant felt that he was being harassed by S1 and S1 was always looking for him and he requested to be moved to a different supervisor. S3 granted Complainant’s request and assigned him to S2 and Complainant agreed to the move. S2 indicated that at the relevant time, Complainant was assigned to him and S2 put him to work as a Materials Expediter as instructed. The record indicates that as a Materials Expediter, Complainant was required to provide productive support for vehicles and equipment repaired, rebuilt, processed for shipment, modified, and fabricated in the Maintenance Center. S2 stated that while Complainant worked in S2’s unit from September 8 – 18, 2014, he did no physical labor as he was mostly out on sick leave and when he came in on September 16, 2014, he left on leave. S2 indicated that Complainant was assigned to the “crane way” and the area had very good cross ventilation. Regarding claim (2), S2 stated that on September 18, 2014, Complainant called him at 8:15 am and requested to be put on sick leave per FMLA. S2 indicated that when Complainant arrived to work at 10:00 am, they talked about Complainant’s work and he told S2 that he had no problem with his assignment. S2 indicated that at about 11:15 am, S2 was contacted by an Emergency Medical Technician who informed him that he was with Complainant who was stating to them that he was exposed to chemicals. S2 stated that at the relevant time, there were no chemicals in Complainant’s work area other than a slight smell of diesel. Regarding claim (3), Complainant claimed that after the incident above, he requested an accommodation and brought medical documentation and his resume. Complainant indicated that no accommodation was granted and he felt he had no other option but get a medical retirement. S3 indicated that Complainant’s medical documentation indicated that Complainant could not work around dust, fumes, or chemicals. But, stated S3, where Complainant worked was an industrial area which made it very hard to avoid all dusts and fumes. S3 stated that Complainant decided on his own to apply for a medical retirement in November 2014. At that time, indicated S3, the Agency was working with Complainant to do a Navy wide job search. Meanwhile, stated S3, the workers’ compensation coordinator found a temporary position at the commissary for Complainant until a permanent job could be found, but he did not show up to work enough so the commissary did not want him and sent him back. S3 noted that in November 2014, Complainant was investigated about his workers’ compensation claim as he was seen smoking and not going to treatment and it was believed that he did not provide his doctor with his smoking history. S3 indicated that Complainant later withdrew his accommodation request. 0120162015 4 S3 denied telling Complainant that he had no work for him and he would be released from Federal service in 30 days as he alleged. On appeal, Complainant does not contest the Agency’s version of events regarding the reasonable accommodation request. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Assuming (without deciding) that Complainant was an individual with a disability, we find that Complainant failed to show that he was denied a reasonable accommodation. The entire complaint can be viewed in most respects as alleging a denial of a reasonable accommodation. The record indicates that the Agency was in good faith working on obtaining Complainant a reasonable accommodation (and had obtained a temporary one for a period of time) until Complainant withdrew the request and then ultimately resigned. There is no indication that the Agency had acted in bad faith. The Agency indicated that there was no permanent vacant position to accommodate Complainant’s medical conditions, i.e., free from dusts and fumes. After a review of the record, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 0120162015 5 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. 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. 0120162015 6 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 June 29, 2018 Date Copy with citationCopy as parenthetical citation