[Redacted], Bertie T., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

May 24, 2022

Appeal No. 2021002320 (E.E.O.C. May. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bertie T.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021002320 Hearing No. 430-2020-00111X Agency No. 19-62383-00787 DECISION On March 8, 2021, 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 February 9, 2021, final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Civil Service Mariner (CIVMAR)/Supply Officer, WM-9991-26, at the Agency’s Military Sealift Command (MSC) facility in Norfolk, Virginia. On March 15, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when: 1. On October 19, 2018, Acting Deputy issued Complainant a Decision of Proposed Removal; 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. 2021002320 2 2. Around October 19, 2018, a Human Resources Specialist (Employee Benefits), did not respond to Complainant’s correspondences, on two separate occasions, requesting a reasonable accommodation (RA) submitted by the Office of Workers Compensation Programs (OWCP) following her Physician’s second opinion; and 3. Complainant contacted the Deputy Director Equal Employment Opportunity (EEO) to request a RA after she had been removed and received no response. The Agency accepted these claims and conducted an investigation into the matter. Complainant’s allegations give rise to claims of disparate treatment and failure to accommodate. Complainant testified that on March 31, 2016, she fell down a ladder at work on board an Agency ship and suffered a right-hand fracture and a right knee fracture. Complainant testified she required two surgeries and intensive rehabilitation for these injuries. Her last shipboard assignment in her position as Supply Officer on board an Agency ship concluded on April 26, 2016. She states she went out on sick leave around July 2016 and filed a worker’s compensation claim. On July 28, 2016, Complainant was placed in a Not Fit for Duty (NFFD) status, which means she was precluded from performing normal duties or being assigned to a vessel. According to Complainant’s immediate supervisor, Marine Placement Specialist, Complainant subsequently took Leave Without Pay (LWOP), Absent Without Leave (AWOL), and OWCP leave. On February 2, 2018, Marine Placement Specialist contacted two of her supervisors, including MPS Supervisor, requesting adverse action against Complainant based on Agency policy memorandums regarding medical clearance for duty. She indicated that Complainant had not returned to sea duty between July 2016 and February 2018. On March 28, 2018, MPS Supervisor issued Complainant a Notice of Proposed Removal for Failure to Maintain a Regular Work Schedule (“Notice”). The Notice states that on July 13, 2011, “MSFSC ltr 12630 Ser Nl/2299” was issued advising all MSC CIVMARs that they may be subject to discipline, up to and including removal, for failure to maintain a regular work schedule. The advisory set forth a list of non-exclusive categories defining failure to maintain a regular work schedule. Included in the list is the inability to receive medical clearance for over six (6) months from their last availability for sea duty. The Notice charged Complainant with failure to maintain a regular work schedule because she had been NFFD since July 28, 2016, a period of over six months, her last shipboard assignment ended April 26, 2016, and to date she was still NFFD with no apparent date of return. The Notice indicated Complainant had been employed with MSC for over nine years during which she had received eight awards. However, “[m]aintaining proper manning and readiness of our vessels is of paramount importance, especially in light of the vital role MSC plays supporting the strike groups, the humanitarian efforts, and the current fight against terrorism. Availability of CIVMARs for assignment on a regular basis enables MSC to successfully accomplish its primary mission. Without it, we put the Agency and the Nation at risk.” (ROI, pp. 127, 139). 2021002320 3 This Notice specifically advised Complainant that if she believed she was a qualified individual with a disability in accordance with the Americans with Disabilities Act/The Rehabilitation Act of 1973, as amended, and she believed her condition(s) may be reasonably accommodated, that she should make this known in her written/oral reply to the deciding official. (ROI, p. 128). MPS Supervisor testified that in order to be assigned to a ship, which is part of Complainant’s position, Complainant must be fit for duty. MPS Supervisor further testified that Complainant cannot work as a civilian mariner if she cannot work aboard a ship. This is necessary for the success of the mission. However, she noted that the MSC medical department determines fitness for duty and she is not involved in that process. Complainant responded to the Notice of Proposed Removal on April 10, 2018 through her attorney representative (the “Response”). The Response stated that the Notice did not accurately reflect Complainant’s situation and should be rescinded. The Response argued that the charge of failure to report for duty was incorrect because it omitted the material facts of Complainant’s medical condition. It noted that this was disability discrimination. However, the Response did not contain any request for a reasonable accommodation, nor did it state that Complainant was in fact fit for duty or able to return to work. (ROI, p. 132). Complainant testified that on September 28, 2018, she advised Marine Placement Specialist and human resources that she was able to return to work. Complainant asserts her medical documentation from her doctor stated she could return to work but no shipboard duties. Complainant states the Medical Records Technician for MSC advised her this was not acceptable, and it needed to state that Complainant was fit for sea duty. She states that her supervisor and human resources were informed she could return to work with restrictions, but they did not offer her reasonable adjustments in the workplace. She contends there were shore jobs under her job description. Complainant further states she provided medical documentation on October 17 and 18, 2018 but she was removed on October 23, 2018. However, it is not clear exactly what was provided on these dates and to whom. A Medical Technician Assistant testified she did receive several documents from Complainant, and on October 19, 2018, Complainant provided her a Medical Summary Form that stated Complainant was not fit for sea duty. She further testified that in order to be medically cleared, an employee who is NFFD must provide documentation clearly stating that the employee is fit for sea duty, although the Force Medical Officer and Nursing Staff at MSC have the final decision on a fit for duty determination. Marine Placement Specialist states that on September 28, 2018, Complainant emailed her stating she completed a 5-week treatment and she was forwarding documents to human resources which would allow Complainant to return to work with restrictions and she would keep Marine Placement Specialist informed. Marine Placement Specialist testified that Complainant did not request an accommodation. Marine Placement Specialist also testified that two other Supply Officers were removed within the past two years for inability to maintain a regular work schedule. Marine Placement Specialist testified that Complainant was removed because she was not fit for duty and that she did not discriminate against Complainant because of her disability. 2021002320 4 The human resources employee to whom Complainant allegedly spoke testified that Complainant did not identify a specific need for reasonable accommodation to her, but if Complainant had, she would have forwarded it to the appropriate department as that is not her job function. She also testified that Complainant is responsible for providing the Force Medical Branch with her medial records and she advised Complainant of this on several occasions. She stated she was solely responsible for providing Complainant’s medical documents to the Department of Labor for OWCP purposes. The record shows on October 19, 2018, the Acting Deputy Director of Manpower for Civil Service Mariners (“Acting Deputy”) issued Complainant a Decision on Notice of Proposed Removal (“Decision”). The Decision found that the evidence supported the charge against Complainant (Failure to Maintain a Regular Work Schedule) and her removal from Federal Service. Therefore, her removal from Federal Service was effective October 23, 2018. (ROI, p. 129). Acting Deputy testified he was the deciding official for all disciplinary actions. Complainant states that the deciding official, Acting Deputy, should have known of her medical issues. She contends that his statements in the removal notice that she was unable to maintain a regular work schedule and that she last provided medical documentation in September 2017 were both untrue. The position description for the job of Supply Officer states that “[a] great amount of physical effort is required in this position. Incumbent is required to pass a physical exam IAW COMSCINST 6000.1 (latest edition).” (ROI, p. 72). COMSCINST 6000.1E (17 Sep 15) states that “[t]he standards represent the minimum occupational fitness qualifications for employment” and are “intended to preclude acceptance of individuals who would be unable to perform assigned tasks or whose conditions are likely to be aggravated by sea service considering the unique operational environment in which MSC ships routinely perform. Applicants must be physically and mentally able to perform their assigned duties without hazard to themselves or others and be able to respond to emergencies at sea (e.g., fire-fighting, damage control).” (ROI, p. 424). COMSCINST 60001.E, Appendix H provides the minimum functional requirements applicable to all CIVMARs. (ROI, pp. 431, 493-496). COMSCINST 6000.1E further states that “[a]lthough the CIVMAR's primary care physician or specialist may indicate that the CIVMAR is FFD [fit for duty] or NFFD [not fit for duty], final authority resides with the MSC Force Medical Officer and designated MSC licensed healthcare providers.” (ROI, p. 425). Additionally, “[a]ll personnel must be able to participate satisfactorily in firefighting, damage control, abandon ship and other shipboard emergency operations.” (ROI, p. 431). COMSCINST 6000.1E also provides for reasonable accommodation, stating that “[a] physical condition or impairment will not automatically disqualify an applicant for appointment if the condition is compensated for by satisfactory treatment, medication, prostheses or mechanical aid appropriate for duties at sea or by reasonable shipboard accommodation. 2021002320 5 Reasonable shipboard accommodation may include, but is not limited to, the use of assistance devices, minimal job modification, and/or adjusted assignments.” (ROI, p. 430). Complainant states there are positions she could have worked in that were located on shore instead of on ship. However, the Agency testified through a member of the Logistics Operations department that the position of Supply Officer is a position onboard MSC ships. He testified that in approximately 2016, he was involved with the initiation of a pilot program to rotate CIVMAR Supply Officers to work ashore at MSC’s headquarters in Norfolk, Virginia for three consecutive four-month assignments. Only one Civil Service Mariner Supply Officer was ever rotated to a temporary shore-side position during the testing of the pilot program. The pilot program did not move beyond the pilot stage and the Supply Officer shore-side rotation was not implemented. He testified to the date of June 2, 2020, there were no shore-side duty positions available to MSC’s Supply Officer CIVMARs. 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s June 9, 2020, motion for a decision without a hearing and issued a decision without a hearing on January 5, 2021. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. However, she did not file any brief in support of her appeal. The Agency contends on appeal that the Summary Judgment decision should be affirmed because there are no genuine issues of material fact and Complainant has not shown that she was subjected to disability discrimination or failure to accommodate. The Agency argues that it articulated legitimate, nondiscriminatory reasons for its actions: that it acted in accordance with regulations, specifically the HR advisory relating to Failure to Maintain a Regular Work Schedule. Additionally, Complainant did not show she was an individual with a disability, nor did she establish that she requested reasonable accommodation prior to her removal. The Agency also notes that even if Complainant had submitted a request for reasonable accommodation prior to her removal, the record does not show that she was a qualified individual with a disability within the meaning of the applicable regulations. 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 2021002320 6 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Nor did she discuss any particular evidence she believed to be missing in her response to the Agency’s Motion for Summary Judgment. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, 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, n. 13; 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. Tex. 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. 2021002320 7 Where the Agency has articulated a legitimate, nondiscriminatory reason for its actions, 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). Here, assuming arguendo, Complainant has proved her prima facie case of disability discrimination, the Agency has articulated legitimate, non-discriminatory reasons for her removal. The Agency removed Complainant for failure to maintain a regular work schedule as required by Agency policy when she was on leave and not fit for duty for an extended period. Agency policy states that CIVMARs who fail to maintain a regular work schedule may be subject to disciplinary action up to and including removal. Employees may be classified as unable to maintain a regular work schedule if they are unable to receive medical clearance for over six months from their last availability for sea duty. It is undisputed that Complainant’s last shipboard assignment ended on April 26, 2016, and that she was not fit for duty from at least July 28, 2016 to February 2018, when Complainant’s supervisor requested adverse action. Additionally, even taking the facts in the light most favorable to Complainant, she did not inform her supervisor that she was able to return to work until September 2018, several months after her proposed removal. However, even at that point, the medical documentation provided by Complainant did not state that Complainant was fit for sea duty and Complainant admits she was not able to perform duties onboard a ship. She did not provide any documentation to show she was not in a leave and/or non-work status at any time between July 26, 2018 and her effective removal on October 23, 2018. Complainant has failed to show that the Agency’s articulated legitimate, non-discriminatory reasons for her removal are pretext for discrimination. The record is absolutely devoid of any evidence of discriminatory animus on the part of the Agency beyond Complainant’s speculative beliefs. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). Failure to Accommodate 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. 29 C.F.R. §§ 1630.2(o) and (p). Reasonable accommodation is available to qualified applicants and employees with disabilities. EEOC Enforcement Guidance on Reasonable Accommodation And Undue Hardship Under the Americans with Disabilities Act. 2021002320 8 Here, Complainant has alleged that the Agency denied her a reasonable accommodation for her disability on two occasions. First, when around October 19, 2018, a Human Resources Specialist (Employee Benefits) did not respond to Complainant’s correspondences, on two separate occasions, requesting a reasonable accommodation submitted by the OWCP following her Physician’s second opinion. Second, when Complainant contacted the Deputy Director of Equal Employment Opportunity after her removal. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability;2 and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). However, here, the record does not show that Complainant requested a reasonable accommodation prior to her removal. Complainant provided medical documentation to Agency HR as part of her OWCP claim. She claims MSC was notified by OWCP of her request for reasonable accommodations. However, she does not identify any MSC management official to whom the request was made or what accommodations were requested, and the record does not reflect any such request until January 18, 2019, nearly three months after Complainant was removed. Additionally, Complainant’s Notice of Proposed Removal specifically advised her to raise the issue of reasonable accommodation in her response if one was needed. She did not do so in her attorney’s April 10, 2018 response. The Agency only has a duty to their employees and applicants, but during January 2019, Complainant was neither an Agency employee nor an applicant. Because the record does not show that Complainant requested a reasonable accommodation prior to her removal, we cannot find that the Agency failed to accommodate the Complainant. 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 order adopting the AJ’s decision. 2 The term “qualified” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). Here, the record seems to indicate that Complainant would not have been able to perform the essential functions of the Supply Officer position since she was unable to perform shipboard duties and therefore would not be a qualified individual. However, since we base our decision on other grounds, we need not address this question here. 2021002320 9 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021002320 10 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 May 24, 2022 Date