Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 20, 2013

0120113552 (E.E.O.C. Sep. 20, 2013)

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

,
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120113552

Agency Nos. 09-67856-02081, 10-67856-00596, 10-67856-00934

DECISION

Complainant filed an appeal from the Agency’s June 20, 2011 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 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 Contract
Specialist at the Agency’s Training and Education Command (TECOM), Comptroller Division
(G7), in Quantico, Virginia. Complainant filed several EEO complaints alleging that the
Agency discriminated against him on the bases of race (African-American), color (black),
disability, age (55), and in reprisal1

for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when:
Agency case number 09-67856-02081

1. (a) In February 2009, Complainant was moved from Training and Education
Command (TECOM) G4 to TECOM Comptroller Division and not advised of the
identity of his first, second, and third level supervisors;

1 Complainant alleged reprisal as an additional basis for those claims arising after May 2009.
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(b) On May 2, 2009, S1, S2, S3 and S4, made a decision that Complainant would
only review purchase requests for less than $100,000;

(c) On May 21, 2009,2

Complainant was charged Absent Without Leave
(AWOL);
(d) On June 3, 2009, S1, S2, S3, and S4, directed Complainant to move from the
Comptroller Division to the Regional Contracting Office from June 3-18, 2009;

(e) Complainant was carried AWOL on the following dates: June 9, 11, 15 through
17, 2009, and July 13 – 15, 2009.

2. On September 13, 2009, Complainant’s work schedule was changed to have him report
to work for 8 hours per day, 40 hours per week.

Agency case number: 10-67856-00596

3. On November 9, 2009, Complainant’s request for reasonable accommodation
(telework) was denied.

Agency case number: 10-67856-00934

4. As of February 2, 2010, Complainant has not received a performance appraisal for
fiscal year 2009, from S1; and

5. On July 7, 2010, Complainant was charged AWOL for 80 hours.

By letter dated October 8, 2009, the Agency dismissed Complainant’s claim that he had been
subjected to harassment (including fourteen specific incidents) from March 2009 to June 2009.
The Agency found that Complainant described isolated remarks, ordinary discussions and other
incidents that did not render Complainant aggrieved and therefore failed to state a claim of
harassment. Additionally, the Agency dismissed Complainant’s request to amend his
complaint to add incidents of harassment such as joking among his supervisors, staring at his
computer monitor, hovering over Complainant’s work station, and speaking to Complainant in
a belligerent tone of voice. The Agency dismissed the proposed amendments to Complainant’s
harassment claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.

By letter dated February 3, 2010, the Agency dismissed Complainant’s claim that he received
an untimely response to his request for reasonable accommodation in January 2010. The
Agency accepted Complainant’s underlying claim that he was denied a reasonable
accommodation (teleworking) (claim (3)).

2 In his Declaration, S1 corrects this date to May 19, 2009.
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The Agency conducted separate investigations for Complainant’s complaints. At the conclusion
of the investigations, Complainant requested the Agency issue a final decision. On June 20,
2011, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

In its Decision the Agency affirmed the earlier dismissal of Complainant’s claims on the
ground asserted as described in the Agency’s letters of partial acceptance and dismissal. The
Agency found that Complainant was a qualified individual with a disability. The Agency
found, nevertheless, that the Agency articulated legitimate, non-discriminatory reasons for its
actions.

The Agency found that Complainant established a prima facie case of reprisal discrimination
regarding the series of incidents described in claims (2), (3), (4), and (5) because Complainant
filed his complaint for discrimination in August 2009, and these events occurred in the months
that followed in close enough proximity to establish the necessary nexus to be supplied by
inference. The Agency determined that there was no discrimination for any claim.

The Agency found that Complainant was moved from G4 to the Comptroller Division in
February 2009, and that he was told he would be assigned to the accounting section and that S1
would be his supervisor. (Claim (1)(a)). The Agency acknowledges that S1 notified
Complainant that he would be his supervisor and that this occurred on March 4, 2009, about
two weeks after Complainant was moved.

With respect to claim (1)(b), S1 stated that the Agency had received complaints of
unsatisfactory work from Complainant’s customers. The Agency noted that most of the
complaints involved purchase orders over the 100,000 dollar threshold. To address the
deficiencies in Complainant’s work, the Agency determined that Complainant’s time should be
devoted to review of purchase orders less than 100,000 dollars.

The Agency found that the events described in claim (1)(d), which Complainant denotes as a
reassignment, was in reality a temporary assignment for training purposes. Complainant was
notified, the Agency found, of the temporary assignment on May 28, 2009, and was informed
he would be working with the Customer Liaison section.

The Agency found that Complainant was charged AWOL (claim (1)(c)) when his sick leave
balance was zero and Complainant was advised of the balance by S1. S1 further explained that
Complainant was charged AWOL on subsequent dates (claim (1)(e)), when Complainant failed
to provide required medical documentation for his absences and when he had no sick leave
available. When Complainant later provided medical documentation, Complainant’s leave was
changed to leave without pay (LWOP). S1 stated that Complainant continued to disregard the
Agency’s leave policies and continued to have insufficient sick leave available to cover the
leave he requested. Therefore, S1 stated, Complainant was given a letter of leave requirement
and restriction based on his extensive use of sick leave and failure to provide documentation in
a timely manner.

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Regarding Complainant’s schedule change (claim (2)), S1 explained that Complainant’s use of
unscheduled leave in 2009, impacted Complainant’s ability to meet the requirements of his
position. S1 therefore notified Complainant that his schedule would be changed to a regular 8
hour work day, five days per week.

The Agency found that Complainant’s position did not meet the requirements for telework and
accordingly all of Complainant’s requests for accommodations for his disabilities were granted
except for his request to telework (claim (3)). The Agency found that Complainant’s position
required face to face interaction that working from home could not provide. The Agency also
found that Complainant’s access to systems and source documents would be less if
Complainant was teleworking. The Agency found that the duties of Complainant’s position did
not meet the criteria for telework authorization and that is the reason Complainant’s
supervisor, S1, denied Complainant’s request to telework.

Additionally, S1 explained that because of Complainant’s extended absences from the
workplace, S1 was unable to issue a performance evaluation to Complainant (claim (4)). S1
stated that Complainant was absent from the workplace beginning April 26, 2010.
Complainant notified S1 that he expected to be absent from work until September 2010. S1
stated that Complainant failed to state the reasons for his absence and accordingly,
Complainant was charged with AWOL in July 2010 (claim (5)), when he failed to respond to a
return to work notice and failed to provide adequate medical documentation to support his
absence from work.

The Agency found that Complainant’s disability did not excuse him from the Agency’s policies
regarding leave, time and attendance. To the contrary, the Agency found that Complainant
failed to identify any other employees with or without disabilities who were not also given
letters of instruction, leave requirements or charged with AWOL under the same
circumstances. The Agency found Complainant was not immune from appropriate discipline3

when Complainant failed to abide by S1’s instructions regarding his leave and requirements for
medical documentation.
The Agency found that overall, Complainant did not present evidence that more likely than not
discrimination occurred because Complainant did not present evidence to rebut the Agency’s
legitimate, nondiscriminatory reasons for its actions. The Agency found that the alleged
incidents in the complaint were well within the broad range of supervisory discretion and the
Agency’s policies and that Complainant had not identified any other employees who received
preferential or less harsh treatment under the same or similar circumstances. The Decision
concluded that Complainant failed to prove that the Agency subjected him to discrimination as
alleged.

On appeal, Complainant disputes the Agency’s finding that his position requires daily face to
face interaction with customers. Complainant states that at most, he needs to interact in person

3 Complainant received a Notice of Proposed Removal on July 9, 2010.
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once or twice a month. Complainant states that he was never told he had any performance
deficiencies prompting S1 to extend the rating period to justify the delay in providing
Complainant with his performance appraisal.

Complainant states that he sent an electronic mail message to S1 on April 26, 2010, informing
S1 that he was not well and would be out of the work place until September 2010, specifically
so that S1 could not claim that Complainant did not appropriately notify S1 of his expected
absence from work. Complainant supplies on appeal, copies of some of the medical
documentation he has provided to the Agency during the time surrounding the incidents
identified in his complaints. Complainant states that his medical documents meet the Agency’s
requirements and that he has complied with the time, leave, attendance, and training
requirements.

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. (November 9, 1999) (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”).

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). Complainant must initially establish a prima facie case by demonstrating
that he or 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 804 n. 14. 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). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Harassment of an employee that would not occur but for the employee’s race, color, sex,
national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129,
1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be
regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor
Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to
trigger a violation of Title VII or the Rehabilitation Act, must be determined by looking at all
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the circumstances, including the frequency of the discriminatory conduct, its severity, whether
it is physically threatening or humiliating, or a mere offensive utterance, and whether it
unreasonably interferes with an employee’s work performance. Harris v. Forklift Systems

,
510 U.S. 17 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995).

As a preliminary matter, we find that Complainant does not challenge the Agency’s procedural
dismissals on appeal and accordingly we AFFIRM the Agency’s dismissals on the grounds
cited, and confine our decision to consideration of Complainant’s claims disposed on the merits
as framed in the Agency’s Final Decision.4

In the instant case, we find the evidence supports the Agency’s Final Decision. We assume for
the purposes of this decision, without so finding, that Complainant established a prima facie
case on all alleged bases of discrimination.

We consider Complainant’s contentions that he has provided medical documents to the Agency
as required and that the Agency’s leave instructions are inconsistent sometimes requiring him
to provide medical documentation within 15 days, and at other times, within 5 days of receipt
of other forms and instructions. We find the examples of medical documents and notice that
Complainant provided to the Agency (for example, that Complainant is “not feeling well”; that

4 We have renumbered the claims of Complainant’s complaints for clarity.
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Complainant has a “medical condition”) are, as the Agency found, vague and inadequate to
provide the Agency with sufficient information of Complainant’s leave requests regarding his
condition, treatment, and prognosis to justify the extensive time away from work that
Complainant expected to need and that he actually used (scheduled or unscheduled).

We find that Complainant was provided with different instructions for requesting sick leave
and leave without pay, based upon the circumstances and in light of Complainant’s history of
leave use with the Agency. We find the Agency properly charged Complainant with AWOL
and required that he either return to work or supply appropriate documentation to justify his
extended absence at the times identified in the complaint. We find Complainant does not
dispute S1’s statements that Complainant had inadequate leave balances when he was charged
AWOL, nor that his leave was on some occasions changed to annual leave or leave without pay
(LWOP) after supplying minimum medical documents.

We find, as did the Agency, that Complainant did not identify other employees, not in his
protected groups, who were permitted to remain on an alternate work schedule (AWS) when
performance issues arose. We find that S1 explained that after being placed on leave
restriction, Complainant’s attendance continued to be unpredictable and S1 changed
Complainant’s schedule to address customer service issues.

Complainant states that he had no training plan or objective and he was not told of any
customer satisfaction issues before his schedule changed. We note that the letter of instruction
explaining the terms of Complainant’s leave restriction describes that Complainant’s
unscheduled absences are having an adverse impact on the Agency’s ability to accomplish its
mission. We find Complainant was therefore on notice that his absences were impacting his
performance and the ability of S1 to manage Complainant’s workload and that of his co-
workers.

We find that the change of assignment to the Comptroller Branch, Complainant’s temporary
assignment for training purposes, imposition of limits to Complainant’s purchase order review
responsibilities, and his schedule change from AWS to a regular 8-hour schedule, are all
operational, management functions well within the realm of ordinary business decisions and
that the Agency has provided reasons for its actions. S1 (Complainant’s immediate supervisor)
and S2 (the Supervisory Financial Management Specialist (TECOM)), both describe the same
reorganization or realignment which impacted Complainant’s assignment. Additionally, we
note the statement of S3 (then Deputy Comptroller (TECOM)), further confirms the
reorganization that resulted in moving Complainant’s position to the Comptroller Branch. S3
also states that he was Complainant’s supervisor during part of this transition and that he
informed Complainant accordingly.

Regarding the denial of telework as a reasonable accommodation, we find that the Agency has
shown that an essential function of Complainant’s work required in office, face to face
interaction and daily in office contact with Complainant’s customers. Therefore, telework was
not an appropriate accommodation. We also find no evidence to support Complainant’s belief
0120113552

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that anything other than Complainant’s performance prompted S1 to take steps to address an
underperforming employee. S1 also states that he counseled Complainant regarding his
performance and S2’s statement confirms that S2 was aware that S1 had done so. Similarly,
we find that Complainant may not have agreed with the Agency’s other operational decisions,
including S1’s decision to extend Complainant’s rating period to allow Complainant time to
demonstrate proficiency in his position. We do not find any evidence, however, that S1’s
actions were discriminatory.

We find Complainant has not presented adequate evidence to show that more likely than not,
he was subjected to discrimination.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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).
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 20, 2013
Date