U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Freddie M.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 0120140976 Agency No. PE-FY10-077 DECISION On December 30, 2013, Complainant filed an appeal from the Agency's November 25, 2013, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Officer at the Agency's Ikego Elementary School in Japan. He was serving a one-year probationary period. On August 22, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (knee), and/or reprisal2 when, he was subjected to a hostile work environment. In support of his claim of harassment, Complainant alleged a series of events from 2009 up to his termination on June 4, 2010. Complainant indicated that the following events occurred: 1. In 2009, his supervisor (Supervisor) did not support him when he informed him that the school does not have enough lunch monitors. 2. During a staff meeting in 2009, the Supervisor did not support him when he recommended keeping personnel who did not belong behind the front counter away from the administrative areas. 3. In November 2009, Complainant asked for a disability parking space. Complainant provided medical documentation and applied for disability parking. However, he stated that the Supervisor allowed female employees without disabilities to park in spots closer to the school than the one he was assigned. 4. On March 11, 2010, the Supervisor did not support him after he reported to him that a student tried to spit on a railing, which almost hit one of the food truck's personnel. 5. On March 11, 2010, the Supervisor did not support him when he made recommendations on how to address a situation where a student made a mess in the restroom. 6. On March 25, 2010, the Supervisor did not support him when he made recommendations to address mischievous acts by students in the restrooms. 7. On March 31, 2010, the Supervisor did not support him after he reported to him that a student broke or twisted a pipe off of a drinking fountain. 8. On April 7, 2010, the Supervisor did not support him when he did not allow custodial workers to work in a particular classroom. 9. On April 9, 2010, the Supervisor showed favoritism toward two other employees by allowing them to leave early. 10. On April 9, 2010, the Supervisor did not support him when he asked the staff not to walk in the areas being cleaned, so as not to disrupt the cleaning crew. 11. On June 4, 2010, the Agency terminated Complainant. At the conclusion of the investigation into these allegations, 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 pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. As to Complainant's claim of reprisal, the Agency noted that Complainant alleged that he was subjected to the alleged harassment following his report of fraud, waste and abuse. As such, the Agency noted that Complainant alleged harassment under the Whistleblower Protection Act and not Title VII. Further, to the extent he has alleged discriminatory harassment, the Agency found that it provided legitimate, nondiscriminatory reasons for its actions and Complainant failed to prove that the alleged actions were related to his race, sex or disability. The Agency held that the Supervisor had concerns about Complainant's conduct and performance for many months. The Supervisor indicated that Complainant was tasked with many assignments which were recorded in office meeting minutes from December 2009 through May 2010. He noted that Complainant failed to organize these tasks or move on them. These work performance problems, as well as Complainant's poor interactions with other school employees, parents and students, led to the decision to terminate Complainant. With regard to the parking issue, the Supervisor stated that responsibility for designating parking spaces fell on the Commander Fleet Activity Yokosuka Safety Office (Safety Office). The Safety Office had failed to install any designated disability parking spots at the Elementary School. However, he said that the parking lot was gravel with a section which was easier for the physically challenged to get in and out of their cars. He denied giving these more favorable spots to female employees. Rather, he said that, because these spots were designated, they were available to whoever got there first. As a result of the lack of designated spaces, the Supervisor assigned Complainant, the school's Administrative Officer, with the task of investigating how to obtain designated parking spaces for individuals with disabilities from the Safety Office. However, he said that Complainant never accomplished this task. This appeal followed. On appeal, Complainant challenged the Agency's final decision and argued that he was subjected to a hostile work environment due to his race and his status as a whistleblower. He argued that other African-American staff members are treated differently than Caucasian staff members. As for the parking space issue, Complainant asserted that the Supervisor provided only one designated parking space and allowed a female teacher to use it even if he had gotten to the spot first. 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. (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"). Reasonable Accommodation The Agency, in its final decision, determined that Complainant failed to raise his claim of denial of reasonable accommodation as a separate matter. We disagree. Upon review of the record as a whole, Complainant clearly asserted that he requested a designated parking space due to his disability and was denied this reasonable accommodation until the date of his termination. We find that such a claim is a separate and actionable claim. Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an "individual with a disability," as defined by 29 C.F.R. § 1630.2(g); (2) he 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 EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance). An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. § 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997) An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner or duration under which an individual can perform a major life activity. 29 C.F.R. § 1630.2(j). The individual's ability to perform the major life activity must be restricted as compared to the ability of the average person in the general population to perform the activity. Id. The record indicates that Complainant has had several operations on his knee due to degenerative joint disease and injuries to his knee. He averred that he utilize knee braces daily to help him walk. He noted that without these assistive devices, he would not be able to function. His condition is such that he walked with a visible limp. The Supervisor averred that when Complainant asked for a designated disability parking space, he did not seek medical documentation because of the obvious nature of Complainant's medical condition and limitations. Therefore, based on the record before us, we find that Complainant has a medical condition which substantially limits him in the major life activity of walking. Finding that Complainant is an individual with a disability, we turn to the issue of his request for a reasonable accommodation. The record indicated that in November and December 2009, Complainant requested a disability parking space. Complainant had a disability parking placard from the state due to his knee condition. The Supervisor responded to Complainant's email stating that parking was provided to the School Counselor (not disabled) but that there were no designated spaces for disabled employees. The Supervisor averred that the Safety Office declined to install a handicapped parking space at the Elementary School, noting that the school was in a 12-year temporary building and a new building was to be built in the future. The parking lot at the school was gravel and the Supervisor asked that it be paved and a section designated for disability parking. He indicated that the request was not supported by the Safety Office and he tasked Complainant with the assignment to investigate and obtain a designated parking space. We find that the Supervisor and the Agency failed to provide Complainant with a reasonable accommodation. We note that Complainant did not seek paving of the gravel lot, but requested a regular parking spot with easier access to the school. Complainant noted that there was an area that would allow him to park and provide him with a short, easy walk to work. The Supervisor noted that this location was "first come, first serve." Rather than designating the area as reserved and allowing only Complainant access to that parking area, the Supervisor tasked Complainant with the assignment to figure out a solution for making a disability parking area. We find that this was insufficient. The Supervisor averred that his requests for handicap parking were denied by the Security Office. There is no indication that Complainant would have been more successful with the Security Office than the Supervisor. Furthermore, the Supervisor did not even consider just marking the more accessible parking area as "reserved" so that Complainant could use that parking space, although he admits the school counselor had a reserved space. Instead, Complainant's request for accommodation went unresolved for over seven months. Therefore, we conclude that the Agency violated the Rehabilitation Act when it failed to provide Complainant with a reasonable accommodation for his disability in the form of a designated parking space with easy access to the school. Harassment It is well-settled that harassment based on an individual's disability and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes, is a qualified individual with a disability covered under the Rehabilitation Act, and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct; (3) the harassment complained of was based on his race, sex, disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 (March 8, 1994). To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Upon review of the record, we find that Complainant has not established his claim of harassment. There is simply no evidence that the actions complained of were in any way taken because of Complainant's race, sex, disability or prior protected activity. Complainant baldly asserted without providing any supporting evidence that he was treated differently than others. Without more, this does not meet his burden of proving discriminatory harassment. Termination As to the termination, responsible management officials articulated legitimate, non-discriminatory reasons for the action. The Supervisor said he decided to terminate Complainant during his probationary employment due to his unsatisfactory work performance, his inability to establish positive working relationships with his colleagues and subordinates, and his failure to meet expectations, The Supervisor also indicated that this was Complainant's first position within a school and he had difficulties interacting with parents, students, and colleagues and noted that others considered Complainant to be "toxic." Based on the poor fit between Complainant and the school, the Supervisor decided to terminate Complainant. The Assistant Superintendant averred that she was also aware that numerous staff members reported negative interactions with Complainant. Based on the totality of the record, we conclude that Complainant failed to establish that he was subjected to discrimination when he was terminated based on his race, sex, disability or prior protected activity. 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 decision finding no discriminatory harassment or discrimination with regard to the termination decision. However, we REVERSE the Agency's decision regarding Complainant's claim of denial of reasonable accommodation and REMAND the matter for further processing in accordance with the ORDER below. ORDER The Agency is ordered to take the following remedial action: 1. Within 60 days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's discriminatory action from November 2009 until Complainant's termination in June 2010. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later man 60 days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 2. Within 120 days of the date this decision becomes final, the Agency shall provide training to the Supervisor regarding the obligations in providing reasonable accommodation under the Rehabilitation Act. The Commission does not consider training to be disciplinary in nature. 3. The Agency shall consider taking disciplinary action against the Supervisor. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 4. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Ikego Elementary School copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 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, 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). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 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 January 8, 2016 __________________ Date 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. 2 Complainant indicated that he was subjected to retaliation for reporting fraud, waste and abuse at the Agency. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140976 2 0120140976