Katina R.,1 Complainant,v.Thomas B. Modly, Acting Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionDec 18, 20190120181600 (E.E.O.C. Dec. 18, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Katina R.,1 Complainant, v. Thomas B. Modly, Acting Secretary, Department of the Navy, Agency. Appeal No. 0120181600 Agency No. DON 17-60530-01271 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated February 28, 2018, finding no discrimination concerning her 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 Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. § 206(d) et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sign Language Interpreter (SLI), DA-1040-04 assigned to the Agency’s EEO office at the Naval Air Weapons Division (NAWCWD) in China Lake, California. On May 5, 2017, Complainant filed her complaint, which was later amended numerous times thereafter through October 2017. The Agency identified Complainant’s claims as follows: 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. 0120181600 2 (1) Complainant alleged discrimination based on disability (association with the hearing- impaired community) when she was subjected to harassment/a hostile work environment in that: (a) On February 1, 2017, management accused her of “bad mouthing” her coworkers; (b) On February 1, 2017, management ignored her requests for mediation after she notified management that she was being treated differently than other employees and that she believed she was being mistreated; (c) On or about January 3, 2017, no action was taken when she informed management that a coworker was harassing her; (d) During January 2017, management discouraged her from applying for the EEO Specialist, DA-04 position; (e) During September 2016, she made senior management aware of the ongoing mistreatment she was subjected to, and they did not respond to her follow up email requesting feedback; and (f) During 2015, she was not properly advised about the efforts of her conversion from a general schedule pay plan to a Science Technology Reinvention Laboratory (STRL) pay plan, prior to accepting the SLI position. (2) Complainant alleged discrimination based on sex (female/sexual orientation, heterosexual) and disability when: (a) In February 2017, she was discouraged by management from submitting a reasonable accommodation request, and was not permitted to bring her Emotional Support Animal to work; (b) On February 17, 2017, she was informed by a member of the 2016 Selection Advisory Board for the SLI position that he ranked her highest for the position, yet management non-selected her for the SLI, DA-04 position; (c) From February 2016, she was informed by a coworker (C1) that C1 received over $25,000 more in annual compensation, even though they were both hired as SLIs; and (d) During June 2016, she told management that she applied for the EEO Specialist position, and she was informed by management that she was not eligible for the position. (3) Complainant alleged discrimination based on disability and in reprisal for prior EEO activity when: (a) On approximately July 1, 2017, her immediate supervisor (S1) changed the essential functions of her position as a result of a reasonable accommodation request; (b) On June 21, 2017, she received a Letter of Reprimand from S1; and (c) On or about February 7, 2017, after informing management that she was filing an EEO complaint, she began receiving harassing emails. 0120181600 3 (4) Complainant alleged discrimination in reprisal for prior EEO activity when she was subjected to ongoing harassment in that: (a) On September 21, 2017, she was forced to resign from her position as a SLI due to S1’s continual harassment, ostracism and badmouthing; (b) On August 23, 2017, she was made aware of her non-selection for the EEO Specialist, DA 03-04 position, job announcement number NE70260-05-1 885358PL569302; and (c) On August 23, 2017, she received notice of a proposed 5-day suspension from S1. Complainant has not challenged the Agency’s framing of the claims. The Agency bifurcated the complaint into two cases, a mixed case complaint, Agency No. 17-60530-00017,2 for claims (1) and (4) and a non-mixed case complaint, Agency No. 17-60530-0127, for claims (2) and (3). The case before us only concerns Agency No. 17-60530-0127, claims (2) and (3) and we will address the subject matter accordingly. After completion of the investigation of the complaint, the Agency provided Complainant notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing, the Agency issued a final Agency decision finding no discrimination as alleged. Complainant appealed. 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 (EEO MD-110), Chap. 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"). 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 Construction 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. 2 It is noted that Agency No. Agency No. 17-60530-00017 is docketed under EEOC Appeal No. 0120181601 which is pending at this time. 0120181600 4 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). Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that complainant was denied a reasonable accommodation, Complainant must show that: (1) he or she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he or she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). 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. See 29 C.F.R. §§ 1630.2(o) and (p). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. Equal Pay The United States Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the EPA in Corning Glass Works v. Brennan, 417 U.S. 188 (1974). To establish a prima facie case of a violation under the EPA, a complainant must show that she or he received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration denied, EEOC Request No. 05A10076 (August 12, 2003). Once a complainant has met this burden, an employer may avoid liability only by showing that the difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or 0120181600 5 quality of production of work (also referred to as an incentive or piecework system); or, (4) a differential based on any factor other than sex. Id. The EPA permits a compensation differential based on a factor other than sex. In order to establish this defense, an Agency must establish that a gender-neutral factor, applied, consistently, in fact explains the compensation disparity. EEOC Compliance Manual, Chapter 10: Compensation Discrimination, No. 915.003, at 10-IV (December 5, 2000). The Agency must also show that the factor is related to job requirements or otherwise is beneficial to the Agency’s business and used reasonably in light of the Agency's stated business purpose as well as its other practices. Id.; Complainant v. Dep’t of Homeland Security, EEOC Appeal No. 0720040139, req. for recons. den., 0520070616 (July 25, 2007). Regarding claim (2)(a), S1 indicated that she never discouraged Complainant from submitting a reasonable accommodation request. Specifically, S1 stated that on January 5, 2017, Complainant indicated that she would like to bring her dog to work as an emotional support animal. S1 indicated that she contacted NAVAIR (Naval Air Systems Command) Headquarter for a Reasonable Accommodation Coordinator (RAC) assignment because she felt it would be more comfortable for Complainant to have her request processed outside of NAWCWD. S1 stated that next day on January 6, 2017, S1 sent Complainant the information on how to initiate a reasonable accommodation request and notified Complainant of the RAC for her to contact. When Complainant did not respond to her email, S1 stated she sent a follow-up email on January 23, 2017. As of April 2017, Complainant did not initiate her reasonable accommodation process. Complainant does not dispute this. Complainant claimed that S1 gave LGBT (lesbian, gay, bisexual, and transgender) community members preferential treatment. Specially, Complainant indicated that S1 allowed her coworker (C1), male, homosexual, to bring his dog to work. S1 indicated that she never approved this for C1 and once she was aware that C1 was bringing his dog to work, S1 stopped it immediately. S1 noted that S1’s duty site was at the China Lake where Complainant was but S1 supervised both the China Lake and the Point Mugu EEO Office sites. C1 was stationed at the Point Mugu EEO Office. Complainant did not claim that C1 ever brought his dog to work after this incident. S1 further indicated that Complainant also requested accommodations that she drive to the Point Mugu site instead of flying and work a reduced work-week. S1 indicated that although Complainant did not contact the RAC, she approved these accommodations by allowing Complainant to drive rather than fly to the Point Mugu site; two days of approved sick leave during five-day work weeks; and one day of approved sick leave during four-day work weeks. Regarding claim (2)(b), S1 indicated that the SLI position was initially advertised in 2014 and Complainant applied. The panel interviewed the applicants and an identified candidate, not Complainant, ranked the highest. S1 selected the identified candidate for the position at the Point Mugu site. 0120181600 6 Later in 2015, S1 received permission to hire a second person at the China Lake site. S1 offered the position to Complainant based on the rank by the interview panel for the 2015 selection. Complainant declined. The position was thus advertised, and three candidates applied, including Complainant and C1. S1 indicated that the panel evaluated the candidates’ interpreting skills and overall the panel ranked C1 first and Complainant second. S1 offered C1 the position but he declined. Complainant was then offered but she too declined. The third candidate also declined the offer. Complainant claimed that one panelist, who subsequently retired, told her later in 2017 that he ranked her highest for the position. The record indicates that another panelist gave both Complainant and C1 the highest rankings (Exceeds expectation) for five out of six interview questions and noted Complainant being very professional and C1 being a very clear signer. We note that regardless of the ranking as Complainant alleged, Complainant was clearly offered the job but declined. S1 stated that in August 2015, the position at the Point Mugu became available. S1 indicated that she offered the position to C1 as a lateral, noncompetitive transfer from the EEOC since he held a GS-12 pay level position. C1 accepted the position. S1 indicated that C1 had experience as a GS-12 with EEOC and had extensive EEO and interpreting experience at the EEOC. S1 indicated that Complainant, who was GS-9 pay level, was then offered the position at the China Lake site for the third time. In January 2016, Complainant accepted a SLI position, DA-04 (equivalent to GS-11 pay level) under the excepted service appointment. As background information, Complainant indicated in claim (2)(c) that C1 received over $25,000 more in annual compensation. As stated above, C1 came into the Agency in February 2016, from the EEOC as a lateral transfer to the DA-04 position from his GS-12 grade level position whereas Complainant was hired by the Agency in January 2016, to the DA-04 position from her GS-9 grade level (equivalent to a DA-03) position at the Air Force. It is noted that DA-04 grade level is equivalent to GS-11 and GS-12 (DA-03 equivalent to GS-09 and GS-10). Complainant acknowledged that C1 performed his SLI position as a lead interpreter and C1’s permanent duty site was at Point Mugu whereas she was at China Lake. Upon review, we find that the Agency articulated the pay disparity was due to a reason other than sex. As background information, Complainant also noted in claim (2)(d) that in June 2016, she was told she was not eligible for the EEO Specialist position to which she applied. S1 indicated that both Complainant and another candidate (C2), female, were eligible for the position at issue but she decided to fill the vacancy through the “direct hire process” based on C2’s status as a disabled veteran. S1 also noted that she did not consider hiring Complainant for this position because Complainant’s work performance of EEO duties declined significantly and she had expressed no desire to perform EEO duties. Complainant acknowledged that she was inundated, overwhelmed, and stressed with EEO Specialist responsibilities around this time period. Regarding claim (3)(a), S1 indicated that Complainant’s essential functions remained unchanged. Despite Complainant’s allegation, the requirement to travel existed in her job announcement and she had always been required to travel. The record indicates that as a SLI, Complainant was indeed required to travel approximately 5-10 days per month. 0120181600 7 Regarding claim (3)(b), S1 indicated that she issued Complainant the Letter of Reprimand for her failure to execute assigned duties and her unprofessional behavior. Therein, S1 noted that she counseled Complainant about these issues over the last few months but saw no improvement. Specifically, S1 stated that Complainant failed to timely or adequately complete her work including EEO counseling, the Management Directive 715 assignment, and sign language services. S1 also indicated that she received a number of complaints from Complainant’s coworkers about her inappropriate and unprofessional behavior, i.e., badmouthing her coworkers. The record indicates that a number of Complainant’s coworkers confirmed that Complainant spoke of them negatively making “snide comments and acted rudely” and complained that she was hired to interpret and was not hired to work on EEO assignments. They also indicated that Complainant was assigned the least amount of work in the division, i.e., assigned only 5 informal cases in two years; and that other employees in the office had to do extra work because she failed to complete her own work. Regarding claim (3)(c), S1 denied ever harassing Complainant or sending her harassing emails. S1 indicated that she sent a number of emails to Complainant inquiring about the status of her assignments as her performance became progressively worse around March/April 2017, when she failed to submit or complete her work assignments. Upon review, we do not find S1’s emails harassing as Complainant alleged rather we note they concerned S1’s inquiry about Complainant’s assignments and related matters in order to assist her in completing assignments. We find that S1 was doing her job as a supervisor to make sure her employees, including Complainant, were completing their work in a timely manner and to assist them if needed in order to accomplish the division goals. There is no evident connection between the alleged harassment and Complainant’s membership in any protected class. Furthermore, we find that there is no evidence that Complainant’s prior EEO activity played any part in S1’s sending emails. Based on the foregoing, we find that Complainant failed to show that she was denied a reasonable accommodation or that any Agency actions were motivated by discrimination. Rather, it appears that Complainant did not work well with her coworkers and with her supervisors. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 0120181600 8 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. 0120181600 9 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 December 18, 2019 Date Copy with citationCopy as parenthetical citation