Heath P.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 2, 2019

0120180326 (E.E.O.C. Apr. 2, 2019)

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

Heath P.,1
Complainant,

v.

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

Appeal No. 0120180326

Hearing No. 410-2015-00180X

Agency No. DON144446601669

DECISION

On October 26, 2017, 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
October 25, 2017 final order 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Painter, WG-4102-
9, in the Paint Shop (Code 300) at the Agency’s Trident Refit Facility located in Kings Bay,
Georgia.

On April 21, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), disability, age (57), and reprisal for prior
protected EEO activity (EEO witness, December 2013) when:

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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1. Complainant’s second-level supervisor moved Complainant from the work
environment against his physician’s orders and did not demonstrate good
faith when he denied Complainant an equal opportunity to work overtime
between January 24, 2014 and February 9, 2014;

2. on January 24, 2014, Complainant’s direct supervisor removed
Complainant from the Paint Shop, after Complainant was a witness for a
coworker in December 2013, regarding an office incident; and

3. on August 14, 2014, a manager harassed Complainant by issuing him a
“Notice of Inability to Accommodate in Current Position” letter.

The Agency accepted Complainant’s complaint for EEO investigation.

Investigation

During the EEO investigation, Complainant stated that his medical conditions involving an
injury to his shoulders and carpal tunnel syndrome prevent him from pushing, pulling, or
reaching over a four-hour period. Further, Complainant stated that he can not lift over 35
pounds.

As to (1), Complainant stated that he was on leave from December 16, 2013 through January 20,
2014, and he returned to work on January 21, 2014. Complainant stated that he provided
management with medical documentation outlining his restrictions and placing him on light duty
through February 17, 2014. Complainant stated that he informed management that he could still
paint, hold watch, and run a wheeler. Complainant stated, on January 24, 2014, the Painting
Supervisor (S1) moved him out of the Paint Shop and into the Tool Room to work. He stated
that he worked in the Tool Room from January 27 to February 6, 2014. Complainant stated that
management offered the entire Paint Shop the opportunity for overtime, but he did not receive
overtime because he was assigned to the Tool Room. Complainant stated that he could perform
the essential functions of his position, except sandblasting in confined spaces, which was only
about 15% of his position. Complainant stated that management treated him disparately
compared to others who also requested accommodation. Complainant stated, on August 4, 2014,
he requested an accommodation of a three-wheel bicycle to carry a tool bag on his back, of
reinstatement of his forklift license so that he could be productive in other essential duties, or of
placement in building 4041. Complainant stated that the Agency sought to find him another
position rather than accommodate him in the position he held.

For (1), S1 (Caucasian, age 44, prior EEO activity as witness in 2014) stated that he worked in
Complainant’s position for nine years and, after reviewing Complainant’s medical
documentation, thought that Complainant could not perform the tasks without injuring himself
further. S1 stated, on January 22,2014, he denied Complainant’s light duty request. He stated
that Complainant is “a very reliable and dependable worker.” S1 stated that he forwarded
Complainant’s request up the chain of command.
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S1 stated that he moved Complainant to the day shift so that he would be available to discuss his
restrictions with the Agency Medical Liaison (M1) who works during the day.

Regarding (1), the General Foreman (S2) (Caucasian, age 59) stated that Complainant’s essential
functions are painting (60%), surface preparation (20%), sandblasting (15%), and related duties
(5%). S2 stated that Complainant must be able to wear a safety harness and enter and exit
confined spaces. S2 stated that Complainant worked under a medically-accommodated position
description and his January 2014 limited duty memorandum further restricted his abilities. S2
stated that Complainant’s medical documentation showed that he could not perform the essential
functions of his position, e.g., lift at least 40 pounds, carry/push/pull more than 15 pounds, and
climb a ladder and reach above his shoulders more than four hours. S2 stated that employees
request overtime and management determines who is awarded overtime based on the skills
required to accomplish the overtime task and who has the least amount of overtime accumulated.
S2 stated that management did not award Complainant overtime because his medical
documentation restricted his duties and he could not be accommodated in the Paint Shop. S2
stated that Complainant is not in the same skill level as the comparator he cited, and the
comparator had less accumulated hours of overtime than Complainant that year. As to (2), S2
stated that management detailed Complainant to a shop that could accommodate his restrictions.
S2 stated that Complainant was detailed temporarily and later returned to the Paint Shop and the
ability to work overtime.

For (1), the Deputy Repair Officer (S3) (Caucasian, age 52) stated that he reviewed
Complainant’s medical restrictions and determined that Complainant could be accommodated in
shop 06A (Tool Room). S3 stated that he would typically confer with M1 to see if other shops
could accommodate an employee’s restrictions, but he is unsure if he did so here. S3 stated that
he agreed with S1 and S2 that Complainant could not be accommodated in the Paint Shop with
his lifting restrictions. S3 stated that overtime is assigned based on the collective bargaining
agreement in place and an employee’s skill level. S3 noted that overtime is assigned at the shop
level. Regarding (2), S3 stated that management allowed the comparator Complainant cited to
remain in the Paint Shop until they found another placement for him as an accommodation.

As to (3), a third-shift Painting Supervisor (S4) (African American, age 50, prior EEO activity as
witness in 2014) stated that he was on a Reasonable Accommodation Advisory Team when
Complainant requested accommodation in June 2014, and he became Complainant’s first level
supervisor in September 2014. S4 stated that the Advisory Team determined that Complainant
could not perform an essential function (sandblasting) of his Painter position. S4 stated that
neither a three-wheel bike or a forklift license would assist Complainant in performing the
essential functions of his position. S4 stated that he allowed Complainant an extension, until
September 30, 2014, to provide a resume for a job search and informed him that his current
position description would be used if he did not provide a resume.
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In pertinent part, the record contains the documents that follow.

▪ Request for Light/Limited Duty dated January 22, 2014, not to exceed
February 17, 2014. S1 and S2 denied the request, stating that
Complainant would not be able to perform his job tasks. The Department
Head, S3, approved Complainant’s request, stating that he could be
accommodated in Shop 06A.

▪ Confirmation of Reasonable Accommodation Request Form, dated August
4, 2014. Complainant stated “I’m unable to [perform abrasive] sand
blasting. And Extended reaching over right shoulder.”

▪ Documentation of Essential Functions of Position, dated August 12, 2014.
S4 identified the essential functions of Painter, WG-4102-9 position as
indicated below.

Work aboard submarines, ships, and within shops with exposure to
fumes, electrical shock, flying objects, excessive noise and other
adverse environmental conditions. Required to work at various
heights from ladders, scaffolding, buckets, etc. as well as confined
spaces such as trunks, tanks. Will be required to use protective
devices, clothing, and/or equipment such as safety glasses, hard
hats, harnesses, life jackets, respirators, safety shoes, etc. . . .
[Complainant’s] Position Description was modified on 1/14/2014.
Factors of Physical Effort have been changed to 35 lbs Pushing, 35
lbs Pulling, 35 lbs Lifting.

▪ A Notice of Inability to Accommodate in Current Position, dated August
14, 2014, from S4 to Complainant. The Notice stated the following:

Due to your inability to perform extended reaching and
sandblasting with heavy equipment with your right shoulder you
are unable to perform the essential functions of your position . . .
Your position description . . . requires you to work aboard
submarines, ships, and within shops which require you to
perform tasks that require extended reaching for extended periods
of time, to include sandblasting, painting/coating, surface
preparation, power washing and other related tasks . . . It has
been determined based on the information provided, that there is
no accommodation that would enable you to perform the
essential functions of your position as a Painter, WG-4102-9.
Therefore, the command will conduct a thirty day job search to
attempt to place you in a position within the local activity, and
then if that placement effort is unsuccessful, refer the placement
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process to the Office of Civilian Human Resources (OCHR) to
attempt to place you at another Navy activity.

Post-Investigation

Following the EEO investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
(AJ) or an immediate final agency decision. Complainant requested a hearing.

On September 28, 2017, after holding a hearing, the assigned AJ issued a decision finding that
Complainant failed to show that the Agency’s actions were based on discriminatory motives.
The AJ found that Complainant failed to show that he could perform the essential functions of
his position. The AJ concluded that the Agency worked to accommodate Complainant, and
when it could not, to find Complainant another position within his medical restrictions.

In a decision dated October 25, 2017, the Agency implemented the AJ’s finding of no
discrimination. The instant appeal from Complainant followed.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that substantial evidence of record supports the AJ’s
determination that Complainant has not proven discrimination by the Agency as alleged.

Hostile Work Environment & Disparate Treatment

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
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an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we
find that Complainant failed to prove, by a preponderance of the evidence, that his race,
disability, age or retaliatory animus played a role in the actions complained of. Management
stated that Complainant could not perform the essential functions of his Painter position, so
moved him to the day shift so that he could meet with the medical liaison about his restrictions
and placed him in an Agency shop that could accommodate his restrictions. Management noted
that Complainant worked under a medically-accommodated position description and his January
2014 limited duty memorandum further restricted his abilities. Management stated that
Complainant was not assigned overtime during the time he was outside of the Paint Shop
because the overtime was for painting tasks. Management stated that it detailed Complainant
temporarily and Complainant later returned to the Paint Shop, with the ability to work overtime.
Management also stated that when it determined Complainant’s medical restrictions did not
allow him to work in his Painter position, it requested a resume from Complainant to conduct an
appropriate job search. Management stated that it allowed Complainant an extension to provide
a resume for a job search and informed him that his current position description would be used if
he did not do so. Complainant did not cooperate with the Agency’s efforts to find him another
position. We conclude that a finding of harassment is precluded by our determination that
Complainant failed to establish that the Agency’s actions were motivated by discriminatory
animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

Further, to the extent that Complainant is claiming that he was subjected to disparate treatment
discrimination, we conclude that the Agency articulated legitimate, nondiscriminatory reasons
for its actions. Complainant failed to prove the articulated reasons were a pretext designed to
conceal discriminatory animus.

Reasonable Accommodation

Under the Commission's regulations, 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).

After receiving a request for reasonable accommodation, the employer should engage in an
informal process with the disabled individual to clarify what the individual needs and identify the
appropriate reasonable accommodation.
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See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation),
EEOC Notice No. 915.002 (October 17, 2002); see also, Abeijon v. Dep’t of Homeland Security,
EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable
accommodation, but they are not necessarily entitled to their accommodation of choice.
Castaneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (February 17, 1994).

Assuming, without finding, that Complainant is an individual with a disability within the
meaning of the Rehabilitation Act, we find that Complainant has not shown that the Agency
failed to reasonably accommodate him. Complainant was on a modified Painter position
description. Complainant stated that he was on leave for a month and returned to work on
January 21, 2014, with medical documentation outlining his restrictions and placing him on light
duty through February 17, 2014. Complainant stated that his medical conditions prevent him
from pushing, pulling, reaching over a four-hour period, lifting over 35 pounds, and sandblasting
in confined spaces. Complainant stated that he informed management that he could still paint,
hold watch, and run a wheeler. Management transferred Complainant from the Paint Shop to the
Tool Room from January 27, 2014 to February 6, 2014, stating that he could not perform the
essential functions of the Painter position. On February 9, 2014, Complainant returned to full
duty in the Paint Shop. While Complainant was transferred to the Tool Room, he could not work
overtime in the Paint Shop.

In June 2014, Complainant presented with permanent restrictions. On August 4, 2014,
Complainant requested an accommodation of a three-wheel bicycle to carry a tool bag on his
back, of reinstatement of his forklift license so that he could be productive in other essential
duties, or of placement in another building. Management stated that the requested
accommodations would not assist Complainant in performing his essential functions, including
sandblasting. Management sought to conduct a job search within and outside of the Trident Refit
Facility for Complainant and requested his resume to do so. The Agency allowed Complainant
until September 30, 2014 to provide a resume or it would use his position description as a
reference. Complainant would not provide a resume. He wanted the Agency to accommodate
him in his Painter position at the Trident Refit Facility. We remind Complainant that he is not
entitled to the accommodations of his choice. See EEOC Enforcement Guidance on Reasonable
Accommodation, question 9.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.

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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

April 2, 2019
Date