Carletta W.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 6, 2017

0120151989 (E.E.O.C. Nov. 6, 2017)

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

Carletta W.,1
Complainant,

v.

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

Appeal No. 0120151989

Hearing No. 430-2012-00373X

Agency No. 11-00146-03384

DECISION

On May 6, 2015, 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
March 31, 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. and Title II of the Genetic Information
Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Privately Owned
Vehicle (POV) Impound and Traffic Court Clerk, GS-0303-05, at the Provost Marshall’s Office
(PMO), Services Division, located at the Marine Corps Air Station in Cherry Point, North
Carolina. Complainant was subject to a one-year probationary period commencing on August
15, 2010. Complainant was terminated during her probationary period, effective July 7, 2011.
During the relevant time, Lieutenant A, Supervisory Security Specialist, was Complainant’s first
line supervisor (S1). Captain B, Supervisory Security Specialist, was Complainant’s second line

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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supervisor (S2). Major C, Deputy Police Chief and Deputy Director of Security and Emergency
Services, was Complainant’s third line supervisor (S3).

On November 3, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of disability (major depression) and genetic information
(high risk of cancer) when:

1. on August 8, 2011, Complainant became aware that rather than utilizing her sick
leave for the time she was hospitalized from July 5 – 7, 2011, her first-line supervisor
charged her annual leave;
2. on July 22, 2011, Complainant became aware that her first line supervisor, second
line supervisor, and third line supervisor refused to address the issues brought forth
concerning the Letter of Reprimand she was given on June 23, 2011;
3. on July 8, 2011, Complainant was terminated during her probationary period because
a determination had been made that she was not suited for continued employment in
her current position; and
4. Complainant was subjected to a hostile work environment from May 23, 2011, to July
7, 2011, by her first line supervisor, second line supervisor, and third line supervisor
when:
a. On July 11, 2011, Complainant’s health care provider was contacted by her
employer and her health insurance was terminated;
b. On July 8, 2011, Complainant’s third line supervisor asked inappropriate
questions and made assumptions into her personal life, while in his office at
the Provost Marshall’s Office;
c. On July 5 – 7, 2011, Complainant’s first line supervisor slammed the phone
down and questioned her need for in-patient treatment for major depression;
d. On June 28, 2011, Complainant’s first line supervisor and second line
supervisor willfully violated Air Station policy for calling when out of work,
against her doctor’s recommendation, and required Complainant to report to
work and provide a doctor’s note;
e. On June 23, 2011, Complainant was issued a Letter of Reprimand by her first
line supervisor for inappropriate behavior which allegedly occurred between
March 2011 and May 2011;
f. On June 8, 2011, after having an anxiety attack, Complainant’s first line
supervisor suggested Complainant drive herself home rather than calling first
responders to ensure it was safe for her to drive home; and
g. On May 23, 2011, Complainant’s first line supervisor and second line
supervisor began to treat her differently because of her potential for on-going
medical appointments and illnesses.

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 requested a hearing but the
AJ denied the hearing request on the grounds that Complainant failed to comply with the Orders
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of the AJ and failed to participate in the pre-hearing conference. The AJ remanded the complaint
to the Agency for the issuance of a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency issued a final decision on March 31, 2015. In its decision, the Agency noted that
despite a request by the Investigator, Complainant failed to fully respond to the questions
presented. The Agency stated that since Complainant failed to respond fully to the questions
posed, information regarding her claims was extracted from the formal complaint and other
documents in the file.

The Agency noted that claims (4)(b) - (d) and (4)(f) – (g) contained allegations that Complainant
was subjected to a hostile work environment and will not be analyzed in the context of disparate
treatment as they are not discrete acts. The Agency recognized that because a hostile work
environment claim may consist of non-discrete acts, claim (4) will be analyzed as a hostile work
environment claim. However, the Agency noted that Complainant alleged five discrete acts that
would independently state a claim: claims (1), (2), (3), (4)(a), and (4)(e). The Agency analyzed
such claims under a disparate treatment analysis. The Agency determined Complainant failed to
prove that the Agency subjected her to discrimination as alleged in any of her claims.

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”).

At the outset, we note Complainant did not object to the definition of any of her claims as
identified in the Agency’s final decision. Moreover, we find the record in the present case is
adequately developed. Also, Complainant has not argued on appeal that the AJ improperly
denied the hearing request.

Genetic Information claim

Title II of GINA prohibits employers from discriminating against any employee because of
genetic information with respect to the employee. 29 C.F.R. § 1635.1. Genetic information
means information about: (i) an individual’s genetic tests; (ii) the genetic tests of that
individual’s family members; and (iii) the manifestation of a disease or disorder in family
members of such individual (family medical history). 29 C.F.R. § 1635.3(c). See Complainant
v. United States Postal Service, EEOC Appeal No. 0120171135 n.2 (May 11, 2017), request for
reconsideration denied, EEOC Request No. 0520170403 (September 20, 2017).
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When asked if anyone made any negative or derogatory remarks about her medical conditions,
Complainant responded she did not know and then stated she “cannot participate in this
testimony anymore” due to her depression. Complainant declined to answer the questions asking
her to explain why her genetic information was the reason she was terminated, was issued a
Letter of Reprimand, required to submit medical documentation on June 28, 2011, resulted in her
health insurance being terminated on July 11, 2011, was charged annual leave on August 8,
2011, or describe what evidence she had to show that the harassment was motivated by her
genetic information. In the absence of contradicting evidence, we find that to the extent that the
Agency had any knowledge or awareness of Complainant’s genetic information, Complainant
has not met her burden of proof to show that such information played a role in any of the
incidents at issue herein. We now move on to the merits of Complainant’s disparate treatment
and harassment claims.

Disparate treatment claims based on disability

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
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. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Upon review of the record, we find that the Agency has provided legitimate, nondiscriminatory
reasons for its actions. As to claim (1), S1 stated Complainant was correctly charged with sick
leave for the dates in question. S1 stated that he originally thought that he had charged
Complainant with annual leave on the dates in question. However, S1 explained that an audit
was subsequently conducted which revealed that he had properly charged Complainant sick
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leave. We find that even if Complainant was incorrectly charged with annual leave on the dates
in question, she has failed to establish that the Agency’s actions were based on her disability.

Regarding claim (2), a Human Resources Specialist (HR1) explained that the Letter of
Reprimand was subsequently cancelled and not placed in Complainant’s official personnel file as
the Agency proceeded to terminate Complainant. Thus, Complainant’s grievance regarding the
Letter of Reprimand was returned without any action.

Regarding claim (3), the Agency noted Complainant was terminated by Major D, the Director,
Security and Emergency Services Directorate. S1 stated he recommended termination to senior
management due to Complainant’s demonstrated unsuitability for continued federal employment
based on her inappropriate and unacceptable conduct during her probationary period. S1 noted
that the documented incidents of unacceptable conduct from March 23, 2011, through June 23,
2011, included: (1) inappropriate use of a government computer; (2) failure to comply with
verbal corrective guidance issued by S1 and S2; (3) while in a duty status having ongoing
personal confrontations with customers of the Marine Corps Air Station (MCAS) Horse Stables
which required police responses, and in which one incident resulted in Complainant’s arrest for
harassment and communicating a threat; (4) displaying inappropriate/insubordinate behavior
towards a supervisor during and immediately following being issued a Letter of Reprimand; and
(5) communicating a verbal threat towards a supervisor subsequent to being issued the Letter of
Reprimand. S1 noted that Complainant’s conduct further served to publicly undermine and
diminish the reputation of the Provost Marshall’s Office (PMO), the Security and Emergency
Services Directorate, and the Installation Commanding Office.

The Director confirmed he was responsible for terminating Complainant during her probationary
period based on the recommendation of her supervisors regarding her involvement in
circumspect events at the stables and other occasions while at work. The Director noted
Complainant had been given second and third chances for improvement; however, she did not
improve.

The record contains the termination letter issued by the Director on July 7, 2011. The letter
stated Complainant was terminated during her probationary period for being involved in multiple
incidents of inappropriate conduct with customers, slamming a door against a wall after
receiving the Letter of Reprimand, and after receiving the Letter of Reprimand making an
inappropriate statement concerning S1 in which Complainant stated: “If I get fired, I will take
[S1] with me.”

Regarding claim (4)(a), S1 denied that he contacted Complainant’s health care provider(s) to
terminate her health care benefits and said he had no knowledge or information regarding anyone
else doing so. Rather, S1 stated that subsequent to cessation of employment of a federal
employee all related benefits are also terminated at some point after termination.

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Regarding claim (4)(e), S1 and S2 both stated the Letter of Reprimand issued to Complainant on
June 23, 2011, was justified based on Complainant’s inappropriate and unacceptable behavior for
which she was previously counseled but failed to correct.

We find that Complainant failed to present any evidence to refute the reasons given by
management. Moreover, we find that Complainant failed to show by a preponderance of the
evidence that the Agency’s actions were a pretext for unlawful discrimination.

Reasonable Accommodation

Upon review, it appears Complainant is claiming she was denied a reasonable accommodation
for her disability when S1 denied her request to be taken out of PMO. In her declaration,
Complainant stated she requested an accommodation for her depression when S1 wrote her up
for the Letter of Reprimand when she asked to be taken out of PMO. The record contains a June
27, 2011 email Complainant sent to S1 requesting a temporary move to another unit not under
PMO command until her grievance process is completed. Complainant stated that she
understood S3 will be handling her grievance and she does not wish to be in contact with him to
prevent “any perception of preferential treatment.” Complainant states that she should not have
to use her own leave to achieve separation from the current command and she believes a
temporary move should be considered a “reasonable accommodation.”

S1 stated that Complainant did not request a reasonable accommodation for her depression.
Rather, S1 noted that Complainant requested to be temporarily reassigned outside of PMO to be
under different supervision. The record contains an email dated June 28, 2011, in which S1
stated he supported Complainant’s temporary reassignment until the completion of the grievance
process. S2 also stated that Complainant did not request an accommodation for medical reasons,
but did request to be reassigned due to the Letter of Reprimand. HR1 stated that Complainant
did not request a reasonable accommodation due to a medical condition. Rather, HR1 explained
that Complainant requested to be reassigned due to the work environment with S3. Upon
review, we find Complainant failed to establish that the Agency denied her a reasonable
accommodation for her claimed disability.

Hostile Work Environment

The Agency noted that S1, S2, and S3 denied that Complainant was subjected to a hostile work
environment. Regarding claim (4)(b), Complainant alleged that on July 8, 2011, S3 asked her
inappropriate questions and made assumptions into her personal life while in his office at the
PMO. Specifically, Complainant stated that S3 asked her “When was the first time you were
sexually abused?” Complainant stated she told S2 that she was seven when her neighbor
repeatedly abused her. Complainant noted that she was terminated after this discussion and
stated S3 made comments that she looked “balled up inside.” S3 stated that the only
conversation he had with Complainant was the day she returned from the hospital or when she
said “hi” to him in the hallway or when she was teaching a vehicle impound class. S3 denied
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harassing Complainant. S1 stated that he was not working on July 8, 2011, and thus, could not
speak directly to any questions made by S3 to Complainant about Complainant’s personal life.

Regarding claim (4)(c), S1 stated he has never slammed the phone down of Complainant or any
other PMO employee. He noted Complainant called in on the morning of the three dates in
question and told him that she was hospitalized but gave no other details about when she would
be released from the hospital. S1 noted that he thanked her each day for her call and hung up the
phone after she did so in a manner consistent with his normal phone etiquette.

Regarding claim (4)(d), S1 stated he never required any one to report to work during an absence
to provide medical documentation excusing the same absence. S1 explained his email guidance
to Complainant advising her that because of her unexcused absence she was expected to report to
work in accordance with her schedule for the remainder of the week, or provide appropriate
documentation as soon as possible. S1 stated this email was sent based on Complainant failing
to report to work on two consecutive days without making the proper notifications to her first or
second line supervisors, her failure to respond in a timely manner to phone message or emails,
and guidance provided to S1 by Human Resources regarding the reporting responsibilities of a
federal employee.

Regarding claim (4)(f), S1 stated that he arrived at the scene several minutes following the
conclusion of the anxiety attack and his observations of Complainant did not demonstrate that
Complainant required emergency services. S1 stated that he spoke with Complainant after the
anxiety attack and offered various forms of assistance, but she denied the need for medical
attention or assistance for travelling to her domicile and further denied that she had suffered any
physical injury.

Upon review, even assuming claim (4)(b) occurred as alleged by Complainant, we find she failed
to show that the incidents cited were sufficiently severe or pervasive to create a hostile work
environment. Moreover, other than Complainant’s bare assertions, we find there is no evidence
linking the identified incidents to her disability or genetic information. Upon review, we find
Complainant failed to establish that the actions by S1, S2, or S3 constituted a hostile work
environment based on any of her protected categories.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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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.
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.
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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

November 06, 2017
Date