Emily A.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 20, 2019

0120182308 (E.E.O.C. Sep. 20, 2019)

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

Emily A.,1
Complainant,

v.

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

Appeal No. 0120182308

Agency No. DON-17-40085-02596

DECISION

On June 28, 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
May 24, 2018, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

The issue presented is whether the Agency discriminated against Complainant when her personally
identifiable information (PII) was accessed and she was told to remove her vehicle from a
handicapped parking space and the Agency threatened to tow her vehicle; and when the
handicapped parking spaces from the alley of Building N26 were removed from use.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial
Management Analyst, GS-0501-11, in the Comptroller Department of Commander, Naval Region
Mid-Atlantic (CNRMA) in Norfolk, Virginia.

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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On September 6, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability (right foot bunionectomy and dysesthesia)
when:

1. On May 24, 2017, a Supervisory General Engineer at Naval Facilities Engineering
Command (NAVFAC) accessed her personally identifiable information (PII) and told
her to remove her vehicle from a handicapped parking space and threatened to tow her
vehicle; and

2. Between May 30, 2017 and June 15, 2017, the Supervisor General Engineer removed
the handicapped parking spaces from the alley of Building N26.

During the EEO investigation, Complainant averred that when she returned to work in December
2016 following a bunionectomy, she could not walk long distances and needed to park in a
handicapped parking space near her building. Complainant stated that on May 24, 2017, someone
left a note on her desk stating that the parking space she was in was “reserved for a lady with a
strict medical condition.” The note advised Complainant to contact the Supervisory General
Engineer if she had any questions. Complainant indicated that when she contacted the Supervisory
General Engineer, he told her that the parking space was reserved for someone with a medical
clearance. Complainant challenged the Supervisory General Engineer’s assertion that a
handicapped space could be reserved and advised him that she would be contacting his supervisor.
Complainant averred that the Supervisory General Engineer came to her office later that morning
and told her to move her car because the person who had the reserved space was waiting to park
and warned her that he would tow her car if she did not move it. She stated that while she and the
Supervisory General Engineer were walking to her car, the Supervisory General Engineer advised
her to obtain a medical note in order to get a reserved parking space. Complainant asserted that
she did not need a medical note because she had always been able to park in a handicap space.

Complainant indicated that a few days after the incident, a Privacy Act Officer contacted her to
request information about the incident and told her that the Supervisory General Engineer was not
authorized to access her PII. Complainant alleged that on May 30, 2017, approximately six days
after her encounter with the Supervisory General Engineer, she noticed that someone had blocked
off the six handicapped spaces behind Building N26 with cones. She indicated that her foot pain
increased because she could no longer park in the handicapped spaces behind Building N26.
Complainant asserted that the Supervisory General Engineer discriminated against her because he
insinuated that the other person’s impairment was more important than hers.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29
C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

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CONTENTIONS ON APPEAL

On appeal, Complainant submits a handwritten markup of the Agency’s final decision in which
she challenges the Agency’s narrative and reiterates her version of events.2

The Agency, in response, argues that it correctly decided that it did not discriminate against
Complainant and urges the Commission to affirm its final Agency decision.

STANDARD OF REVIEW

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), 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”).

ANALYSIS AND FINDINGS

To prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part
evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, Complainant must establish a prima facie case by demonstrating that she was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S.
567, 576 (1978). Second, the burden is on 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). Third,
should the Agency carry its burden, Complainant must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the Agency were not its true
reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s
Honor Center v. Hicks, 509 U.S. 502 (1993).

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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).

Assuming arguendo that Complainant is an individual with a disability and established a prima
facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory

2 We note that Complainant submitted additional evidence along with her appeal. Although the
Commission does not generally consider evidence that is submitted for the first time on appeal, we
find that the newly submitted evidence, even if considered, would not materially change our
finding of no discrimination.
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reasons for its actions. For claim 1, the Supervisory General Engineer outright denied
Complainant’s allegation that he accessed her PII, told her to remove her vehicle from a
handicapped parking space, and threatened to tow her vehicle. The Supervisory General Engineer
explained that the space where Complainant was parked was no longer designated as a
handicapped space and had been reserved for someone who had a reasonable accommodation. He
denied putting the note on Complainant’s desk and stated that base security officers who were
responsible for issuing parking tickets and towing vehicles were the ones who wrote the note. He
also emphasized that he was unaware of Complainant’s disability and did not tell her to get a
doctor’s note to reserve a parking space, as he did not have authority to approve reasonable
accommodation requests.

As for claim 2, the Supervisory General Engineer explained that the handicapped parking spaces
at the back of Complainant’s building were removed after an Anti-Terrorism Force Protection
(ATFP) inspection, which revealed potential dangers with having vehicles parked too close to the
building. Report of Investigation (ROI), pgs. 190, 208. As such, all of the parking spaces were
repainted, and the area was converted to a loading zone. A Management Analyst also testified
during the EEO investigation that the Agency initially removed handicapped parking spaces
behind Building N26 in April 2016 to perform work on the roof. Though the original plan was to
return the handicapped parking spaces after the work was complete, the area was converted to a
loading zone due to ATFP concerns.

After careful consideration of the evidence of record, we find no persuasive evidence that the
Agency’s articulated reasons were pretext for discrimination. The Commission has long held that
agencies have broad discretion to set policies and carry out personnel decisions and should not be
second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep't
of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Given the facts in this case, we
find that Complainant failed to show by the preponderant evidence that she was subjected to
discrimination, as the record clearly reflects that the Agency had legitimate, nondiscriminatory
reasons for its actions.

Regarding claim 1, while we acknowledge that there is a dispute as to whether the Supervisory
General Engineer told Complainant to move her car and whether he threatened to tow it if she did
not comply, we find that the totality of the record suggests that the Supervisory General Engineer
did not act to discriminate against Complainant. In reaching this conclusion, we acknowledge
Complainant’s contention that handicapped parking spaces cannot be reserved; however, the
record reflects that the handicapped parking space where Complainant parked her car was no
longer designated as such, but rather was reserved for an individual who had gone through the
reasonable accommodation process and received an accommodation.3 We note that the Agency
has an obligation to reasonably accommodate disabled employees, and, as such, even if the
Supervisory General Engineer told Complainant to move her car and/or threatened to tow it, we

3 In contrast, Complainant had a handicapped placard, but had not yet requested reasonable
accommodation at the time of the May 24, 2017 incident.
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find that Complainant was not discriminated against when the Agency was attempting to comply
with the reasonable accommodation granted to another Agency employee.4

As for the alleged violation of Complainant’s PII, we note that the Commission has no jurisdiction
over violations of the Privacy Act. To the extent Complainant alleges that the Agency violated her
PII because of her disability and/or treated her disparately, for the reasons discussed above, we
find that the Agency had legitimate, nondiscriminatory reasons for running her license plate (i.e.,
law enforcement purpose), for which she has failed to demonstrate pretext.

For claim 2, although the record shows that the Agency removed/blocked off parking spaces from
the alley of Building N26, we find that such action was not due to Complainant’s disability, but
rather attributable to preexisting plans to repaint and convert the area to a loading zone.5 Although
the Agency blocked off the handicapped parking spaces following the incident with Complainant,
we are unpersuaded by Complainant’s contentions that this was done in order to discriminate
against her. We conclude that the Agency did not discriminate against Complainant in this regard
on the basis of her disability.

To the extent Complainant is alleging that the Agency violated the Rehabilitation Act by failing to
reasonably accommodate her disability, we find that the record clearly shows that the Agency
provided reasonable accommodations to her. We initially note that Complainant did not have any
accommodations at the time of the May 24, 2017 incident. By Complainant’s own account, she
did not request reasonable accommodation because she already had a handicap parking placard
from the State of Virginia. The record shows that Complainant requested reasonable
accommodation from the Agency in July 2017. Thereafter, Complainant’s supervisor met with
Complainant to discuss reasonable accommodations and ultimately offered Complainant the
option to telework at least three days a week (with flexibility to request additional days) because
there were no available reserved parking spaces near her building. ROI, pgs.105 and 177-178.
Though we acknowledge that the Agency did not grant Complainant’s requested accommodation
of a reserved parking space next to her building, under our regulations, an agency is only required
to provide an effective accommodation and not necessarily the accommodation of choice. See
Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). As the record clearly
shows that the Agency provided Complainant with an effective accommodation of telework, we
find that the Agency did not fail to reasonably accommodate her disability.

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 finding no discrimination.

4 The record shows that there were several designated handicapped parking spaces where
Complainant could have parked. ROI, pg. 124.
5 We note that Complainant did not allege discrimination on the basis of reprisal.
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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

September 20, 2019
Date