EEOC Appeal 2019005905

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Myung S.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2019005905
Hearing No. 570201701368X
Agency No. 176523600797
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 15,
2019 Final Order concerning an 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 Pregnancy Discrimination
Act (“PDA”), as amended, 42 U.S.C. § 2000e(k).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative
Specialist, NO-05 (GS-13 equivalent), for the Space and Naval Warfare Systems Center
Command, Atlantic (“SPAWAR”) within the SPAWAR Systems Center Atlantic (“SSC-LANT”)
at the Agency’s Fixed Facility Government Approved Testing Lab (“FF-GAL”) in Auburn,
Washington.
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 February 15, 2017, Complainant filed an EEO complaint alleging discrimination by the Agency
on the bases of sex (pregnancy) and disability (fibromyalgia, muscle and nerve damage in her right
arm, PTSD, depression, and cesarean section surgery) when:
a. on December 27, 2016, she was notified of change in duty hours; and
b. failure by her supervisor to provide reasonable accommodation.
The Agency accepted the complaint and conducted an investigation. The record developed during
the investigation provides the following facts:
On February 22, 2016, Complainant began working as an Administrative Specialist, a 2 year term
position with the potential for extension. In this role, she served as the FF-GAL Facility/Project
Manager in the Defense Healthcare Management Systems (“DHMS”) Integrated Product Team
(“IPT”). Complainant was assigned to the Department of Defense Healthcare Management
System Modernization (“DHMSM”) Project, where she provided support as the Incident/Defect
Manager and the Release Manager. Contractors and employees of both the Agency and the
DHMSM Program Office (the “Client”) worked at the FF-GAL.
Complainant reported to an SSC-LANT Administrative Supervisor, NM-04, in Washington, D.C.,
as her first level supervisor (“S1”), but took day to day direction from the IPT Leads (“L1” and
“L2”) on site. Although Complainant’s work schedule was 7:30 am to 4:00 pm, the rest of SSC-
LANT was based on the East Coast, and held a daily meeting at 8:00 am EST, which was 5:00 am
PST. When Complainant started in her position, S1 arranged for her to telework for the first two
hours of her work day so joining the call at 5:00 am would be more convenient. S1 would regularly
approve Complainant for situational telework when she had additional phone meetings, or other
responsibilities that could be completed at home. While acknowledging the stated purpose of the
telework was the 5:00 am daily meeting, Complainant testifies that she told S1, L1, and others that
the arrangement helped her manage her service-connected disabilities. In June 2016, S1 was
replaced by a new supervisor (“S2”).
On August 17, 2016, Complainant emailed S2, L1, and L2 about her upcoming maternity leave
for 8 weeks from September 2016 through November 2016. Complainant suggested that in order
to avoid becoming “out of the loop” with the testing schedule, an alternative work schedule (on
site two days per week) and/or telework while on maternity leave. Complainant did not suggest
an accommodation to extend past the maternity leave period. L1 testified that she approved
Complainant for two hours of telework per week during her maternity leave to “stay current” on
email, but Complainant was encouraged to use her leave to recover.
On October 3, 2016, Complainant submitted a physician’s note explaining that she had given birth
via Cesarean Section on September 26, 2016, and would be “unable to engage in physical activities
for the next 6-8 weeks.” The note further provided: “[r]emaining at home is appropriate and she
needs to avoid lifting.

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She has requested to telework until she is fully healed and cleared to return to work without any
restrictions.” Rather than request full time telework, Complainant took additional leave, and
returned to work in mid-December 2016.
Meanwhile, in November 2016, the IVV Lab Manager resigned. Complainant’s responsibilities
had overlapped with those of the IVV Lab Manager, including providing authorized employees
and contractors with access to FF-GAL. S2 states that the Agency had to “resort to extraordinary
efforts” when Complainant extended her maternity leave, detailing an Administrative Specialist
from another facility to the FF-GAL, to cover Complainant’s duties until December 14, 2016.
On or about December 19, 2016, one of the Client’s contract employees was unable to access the
FF-GAL when they arrived to work that morning. The Client notified S2 that the Agency “needed
to provide government resources to man the facility from 7:30 am PST to 4:00 pm PST at a
minimum because that was what we were paying for.” The Client noted that FF-GAL was rarely
mentioned during the daily meeting and specified that ensuring its employees and contractors
could access FF-GAL when they arrived to work in the morning was a higher priority than calling
into the meeting at 5:00 am.
On December 20, 2016, S1 informed Complainant that her participation in the daily meeting was
no longer required, and directed her to report to work for her full shift, 7:30 am to 4:00 pm effective
December 27, 2016. Complainant was the only SPAWAR employee working at FF-GAL that
month. In the absence of an IVV Lab Manager, and in light of the Client’s requirement, S2 states
that Complainant’s presence was required on site “to the maximum extent possible” until another
IVV Lab Manager could be hired. By Complainant’s account, upon her return, several new
contractors were working at the facility, and the Client had hired another employee who she
believed could take on the responsibility of granting access to the FF-GAL while Complainant
teleworked.
On December 27, 2016 Complainant contacted the Agency’s EEO Office, alleging that she was
denied reasonable accommodations for her disabilities when S2 instructed her to work on site from
7:30 am to 4:00 pm. The EEO Office reached out to S2 requesting information on the essential
functions of Complainant’s position in order to initiate the interactive process for accommodating
her disabilities. On or about January 6, 2016, Complainant also contacted S2, requesting her prior
telework arrangement without referencing her disabilities. She also noted that several rotational
SPAWAR employees were working on site through February 2, 2017. S2 denied Complainant’s
request. He also provided the EEO Office with the requested information. S2 clarified that
Complainant’s schedule was 7:30 am to 4:00 pm, and the past 10 months of telework had been a
unique arrangement to insure attendance at the daily meeting per the Client’s request.
On January 17, 2017, Complainant requested leave without pay from January 23, 2017 until March
20, 2017, “for recovery due to medical disabilities and aggravated disabilities due to lack of
reasonable accommodations and need for recovery.” S2 requested additional documentation, so,
on January 19, 2017, Complainant provided a note from her physician stating, “Please excuse Amy
Jennings from work January 23- March 20, 2017 due to recent c-section surgery.”

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The note did not reference Complainant’s non-pregnancy related disabilities. Her request was
granted. The Agency’s EEO Office followed up with S2 and Complainant by email in February
and March 2017. Complainant resigned on March 18, 2017.
Complainant timely requested a hearing before an Equal Employment Opportunity Commission
(“EEOC” or “Commission”) Administrative Judge (“AJ”). The Agency submitted a motion for a
decision without a hearing, which the AJ granted in the Agency’s favor on July 31, 2019.
The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
Allegation of AJ Abuse of Discretion
We first address Complainant's contention that the AJ abused her discretion when she did not issue
a default judgment in Complainant’s favor as a sanction against the Agency for delaying its
investigation into her complaint. The Commission's regulations afford broad authority to AJs for
the conduct of hearings. 29 C.F.R. § 1614.109 et seq.; EEO MD-110, Chap. 7, § III(D). An AJ has
inherent powers to conduct a hearing and issue appropriate sanctions, including a default judgment.
Id.; see Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005); Rountree v.
Dep't of the Treas., EEOC Appeal No. 07A00015 (July 17, 2001).
The record reflects that the Agency failed to initiate its investigation until the AJ initially assigned
to this complaint ordered the Agency to produce the complaint file on September 26, 2017,
warning it could face sanctions if it failed to comply. On October 27, 2017, Complainant filed a
motion for sanctions and default judgment against the Agency for delaying its investigation. While
it was undisputedly late, the Agency completed a thorough investigation with extensive witness
interviews, within about 2 months of the AJ’s order, submitting it on December 4, 2017.
The complaint was reassigned to another AJ, who held a scheduling conference with the parties
on December 18, 2018. Complainant again requested sanctions based on the delayed investigation.
The AJ denied Complainant’s request because the delay was not “sufficiently egregious” to
warrant default judgment. We find the AJ acted within the scope of her discretion when she denied
Complainant’s motion.
Summary Judgment
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine”
if the evidence is such that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105
(1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case.

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In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s Final Order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).
To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to
prevail, he or she must first establish a prima facie case of discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159
(June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467
(June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Agency, as the employer, has the discretion to determine how best to manage its operations
and may make decisions on any basis except a basis that is unlawful under the discrimination
statutes. Furnco, supra; Nix v. WLCY Radio/Rayhall Comm., 738 F.2d 1181 (11th Cir. 1984).
An employer is entitled to make its own business judgments. The reasonableness of the employer's
decision may, of course, be probative of whether it is pretext.

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The trier of fact must understand that the focus is to be on the employer's motivation, not its
business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words,
this Commission "does not second-guess the business judgment of Agency officials regarding
personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice,
EEOC Appeal No. 0120093506 (Jul. 27, 2012) recon. den. EEOC Request No. 0520120603 (Jan.
31. 2013).
Here, the Agency’s legitimate non-discriminatory reason for requiring Complainant to work her
assigned shift of 7:30 am to 4:00 pm on site at FF-GAL, was to ensure the Client’s employees and
contractors could access the FF-GAL during their shift. The Client’s contractors and most of its
employees working at FF-GAL did not have a key card to access the building. Moreover,
contractors were only permitted to work at FF-GAL when a SPAWAR employee was physically
on site. The Client notified S2 of this requirement, and explained that because FF-GAL was rarely
the topic of conversation during the Washington, DC SSC LANT morning meetings, it was
unnecessary for Complainant to continue calling in. S2, exercised business judgment and removed
the daily teleconference from Complainant’s responsibilities and instructed her to work on site
from 7:30 am to 4:00 pm.
Complainant’s schedule of record is 7:30 am to 4:00 pm, and her position description states, among
other things, that she oversaw the operation of the FF-GAL, including the issuance of equipment
and entry authorization for individuals working at or visiting the FF-GAL. The Administrative
Specialist who covered for Complainant during her maternity leave testified that he arrived at 6:30
am every day in part to let the contractors and employees without swipe cards into the facility. The
Lab Manager IVV whose position also included providing access to the facility resigned in
November 2016. When S2 received the Client’s request and told Complainant that she was no
longer to telework in the mornings, Complainant had completed her maternity leave, and the
SPAWAR employee detailed to cover her shift had transferred. She was also the only full time
SPAWAR employee working at FF-GAL at this time.
Complainant has failed to sufficiently show that the Agency's action was unreasonable in terms of
business judgment, and thus, without more, complainant's argument that the agency's articulated
reason was a pretext for discrimination is unproven.
Reasonable Accommodation
The Commission's regulations require an agency to make reasonable accommodation for the
known physical and mental limitations of a qualified individual with a disability unless it can show
that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A
qualified individual with a disability is an "individual with a disability" who satisfies the requisite
skill, experience, education and other job related requirements of the employment position such
individual holds or desires and, with or without reasonable accommodation, can perform the
essential functions of such position. 29 C.F.R. § 1630.2(m).

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Essential functions are the fundamental job duties of the employment position the individual with
a disability holds or desires. 29 C.F.R. § 1630.2(n). A function may be essential, for example,
because the reason the position exists is to perform that function or there are a limited number of
employees available among whom the performance of that job function can be distributed. Id. at §
1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's
judgment as to which functions are essential; written job descriptions; and the amount of time
spent on performing that function. Id. at § I630.2(n)(3).
A reasonable accommodation is an adjustment or change at work for a reason related to a medical
condition. See Bryan R. v. United States Postal Serv., EEOC Appeal No. 0120130020 (Mar. 20,
2015), citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, No. 915.002, Question 1 (Oct. 17, 2002). When an
individual's disability and/or the need for accommodation is not obvious, the employer may ask
the individual for reasonable documentation about her disability and functional limitations. Id. at
Question 6. The employer is entitled to know that the individual has a covered disability for which
she needs a reasonable accommodation Id. Reasonable documentation means that the employer
may require only the documentation that is needed to establish that a person has a disability within
the meaning of the Rehabilitation Act and that the disability necessitates a reasonable
accommodation. Id.
Agencies are required to engage in an interactive process with employees regarding reasonable
accommodations, and employees who refuse to cooperate in that process are not entitled to an
accommodation. See Carleen L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120151465
(May 12, 2017), citing EEOC Notice No. 915.002, Question 6. For instance, if an individual's
disability or need for accommodation is not obvious, and she refuses to provide the reasonable
documentation requested by the employer, then she is not entitled to a reasonable accommodation.
Id.
Notwithstanding the Agency’s argument that Complainant’s physical presence in FF-GAL from
7:30 am to 4:00 pm was an essential function of her position, we find that the Agency did not
violate the Rehabilitation Act because Complainant failed to cooperate when the Agency
attempted to engage in the interactive process. Specifically, Complainant did not provide
“reasonable documentation,” or even respond to the Agency’s detailed request for medical
documents to support her accommodation. Complainant contends that she already provided
documentation during the hiring process, as her application included documents supporting her
service connected physical and mental disabilities from the Veterans Administration, and self-
disclosed her disability status to the Agency on a separate form. While this establishes that
Complainant is an individual with a covered disability, it did not provide S2 with sufficient
information about her functional limitations as they pertained to the accommodation she requested
and with respect to her ability to perform the essential functions of her position. Moreover, there
is no indication in the record that Complainant sought any type of reasonable accommodation other
than telework. Because of her lack of cooperation in the interactive process, Complainant was not
entitled to a reasonable accommodation.

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Pregnancy Discrimination Claim
The Pregnancy Discrimination Act (“PDA”) of 1978 amended Section 701 of Title VII of the Civil
Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy.“ 42 U.S.C. §
2000e(k)). Congress enacted the PDA to make clear that discrimination based on pregnancy,
childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII.
Thus, the PDA extended to pregnancy Title VII’s goals of “[achieving] equality of employment
opportunities and remov[ing] barriers that have operated in the past to favor an identifiable group
of ... employees over other employees.” Griggs v. Duke Power Co., 401 U.S. 424, 429-430 (1971).
The Equal Employment Opportunity Commission’s Enforcement Guidance: Pregnancy
Discrimination and Related Issues (June 25, 2015) (“Pregnancy Guidance”) states that also
potentially covered is discrimination based on the capacity to become pregnant or the intention to
become pregnant and such pregnancy-related needs as maternity leave and breast feeding. It should
also be noted that certain pregnancy-related medical conditions could warrant Rehabilitation Act
consideration. See also Young v. United Parcel Service, 135 S.Ct. 1338 (2015). “While pregnancy
is not itself a disability, pregnant workers and job applicants are not excluded from the protections
of the [Rehabilitation Act].” Pregnancy Guidance, supra.
Complainant requested additional leave to recover from a Cesarean Section on October 3, 2016
and January 17, 2017, which, upon receiving supporting medical documentation, the Agency
granted. Complainant has not explained how she was discriminated against based on her
pregnancy-related condition either under Title VII or under the Rehabilitation Act.
Upon careful review of the AJ’s decision, the evidentiary record, and the parties’ arguments on
appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did
not establish that Complainant was discriminated against by the Agency as alleged. On appeal,
Complainant has not shown a question of material fact exists to warrant a hearing.
CONCLUSION
Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s decision.
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.

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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.
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.

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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
May 21, 2020
Date