[Redacted], Dexter K., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionApr 5, 2022Appeal No. 2020003520 (E.E.O.C. Apr. 5, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dexter K.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003520 Agency Nos. DON-18-50213-00284 DON-18-50213-01277 DECISION On May 21, 2020, 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 April 27, 2020, final decision concerning his 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, we AFFIRM the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS- 0083-07, at the Navy Support Activity Monterey (NSAM) facility in Monterey, California. He joined the Agency on December 5, 2016, and was subject to a two-year probationary period. On October 9, 2018 and November 21, 2018, Complainant filed two separate EEO complaints alleging that the Agency discriminated against him on the bases of disability (double amputee with artificial hip joints, chronic respiratory infections, and herniated and torn spinal discs) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973. 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. 2020003520 2 The Agency consolidated the two complaints and framed the claims for investigation in the follow manner:2 1. Complainant alleged that his managers failed to provide timely and effective reasonable accommodations for his disability (physical) when: a. On August 26, 2018, management ignored Complainant’s request for reasonable accommodation; and b. On unspecified dates, Complainant was repeatedly denied reasonable accommodation for his disabilities. 2. Complainant also alleged that responsible management officials, namely, RMO1 (Supervisory Police Officer), RMO2 (Supervisory Police Lieutenant), and RMO3 (Deputy Chief of Police), subjected him to disparate treatment based on his disability and reprisal for prior EEO activity when: a. In June 2018, RMO1 canceled Complainant’s military leave due to manpower shortage; b. From July 5 to 11, 2018, management denied Complainant medical treatment for his worker’s compensation claim; c. On July 26, 2018, RMO2 advised Complainant that his shift would change to the Alpha Day shift starting on July 29, 2018; d. On August 20, 2018, RMO2 issued Complainant a Letter of Requirement (LOR) for leave abuse; e. On August 21, 2018, RMO2 issued Complainant a disciplinary letter for violating his LOR from August 20, 2018; f. On September 25, 2018, RMO1 issued Complainant a disciplinary letter for violating the August 20th LOR; g. On September 25, 2018, RMO1 disapproved Complainant’s requested medical leave for failing to provide supporting documentation; and h. On September 28, 2018, Complainant was given a termination letter by RMO3 during his probationary period. 2 For ease of reference, we framed Complainant’s allegations in the same manner reflected in the Agency’s final decision. 2020003520 3 3. Complainant further alleged that RMO1, RMO2, RMO3, Human Resources Specialist (HRS1), and Lead Officer (SGT) subjected him to harassment based on his disability and reprisal when, in addition to the incidents set forth in Claims 1 and 2. a. In December 2016, RMO3 warned Complainant not to contact Human Resources for any reason or Complainant would be punished; b. In April 2017, HRS1 denied Complainant’s request for follow-up medical treatment; c. In March 2018, RMO3 informed Complainant that he was not selected for the Police Instructor position; d. On July 4, 2018, SGT ordered Complainant to stay at work after he injured his back; e. On September 6, 2018, SGT said “psycho bitches” multiple times during the Sexual Assault Prevention and Response course; and f. On unspecified dates, Complainant was denied rights by management to take his lunch breaks or other breaks while on duty. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision on April 27, 2020, pursuant to 29 C.F.R. § 1614.110(b). With regard to claim 1a and 1b, concerning Complainant’s denial of reasonable accommodation claims, the Agency found that Complainant had been provided reasonable accommodations when management reassigned him from the night shift to the day shift to address his medical restrictions on walking, standing, and lifting. While the Agency acknowledged that Complainant wanted to remain on the night shift, the Agency determined that management had legitimate reasons for transferring him to the day shift, as “there was more manpower and less impact on the duties he would have to perform.” See Final Decision at 21. In finding no discrimination, the Agency emphasized that Complainant was not entitled to the accommodation of his choice. For claims 2a to 2h, the Agency found that management either outright denied the allegations (claims 2a and 2b) or had legitimate, nondiscriminatory reasons for taking the alleged actions. Having reviewed the record, including Complainant’s affidavit, the Agency concluded that “the preponderance of the evidence does not support Complainant’s claim of unlawful harassment.” See Final Decision at 26. Finally, the Agency addressed claims 3a to 3f, including Complainant’s non-selection claim under the legal standard for harassment. The Agency ultimately determined that Complainant could not prevail on his non-selection claim because the record showed that Complainant did not score as high as the selectee. 2020003520 4 As for the other claims, the Agency concluded that these Complainant’s allegations were insufficiently severe or persuasive to rise to the level of a hostile work environment given the Agency articulated legitimate, nondiscriminatory reasons for the alleged actions. This appeal followed. Neither Complainant nor the Agency filed contentions on appeal. Upon careful review of the Agency’s final decision and the evidence of record, we find that the Agency correctly determined that Complainant failed to establish that the Agency subjected him to discrimination as alleged. However, we find that the Agency misapplied the law in claim 3c, concerning Complainant’s non-selection. While the Agency analyzed that claim under the legal standard for harassment, we note that the Commission has long held that clearly defined claims, such as a non-selection, are discrete in nature and should be considered under the legal standard for disparate treatment. Carey v. Dep’t of Def., EEOC Appeal No. 01A53389 (Sept. 1, 2006), citing Nat’l Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Nevertheless, we conclude that the Agency’s error was harmless, as the preponderance of the evidence fails to persuasively show that Complainant was plainly superior to the selectee. In reaching this conclusion, we note that Complainant has not presented any arguments on appeal that would contradict the Agency’s finding of no discrimination. Accordingly, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2020003520 5 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 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. 2020003520 6 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 5, 2022 Date Copy with citationCopy as parenthetical citation