0520080799
12-24-2009
Alexandra H. Sabbers, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.
Alexandra H. Sabbers,
Complainant,
v.
Paul F. Prouty,
Acting Administrator,
General Services Administration,
Agency.
Request No. 0520080799
Appeal No. 0120063209
Agency No. 05R2FSSAS11
DENIAL
Complainant timely requested reconsideration of the decision in Alexandra
H. Sabbers v. General Services Administration, EEOC Appeal No. 0120063209
(July 24, 2008). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In the underlying complaint, complainant, a Lead Writer/Editor
(GS-1082-13) and Team Leader, for the agency, in New York, New York,
filed an EEO complaint, alleging that she was discriminated against
on the bases of sex (female), disability, age (41) and in reprisal for
prior protected EEO activity (arising under Title VII, the ADEA and the
Rehabilitation Act) when:
(1) on or about May 25, 2005, her work-at-home schedule was reduced
from two days to one day per week;1 and
(2) she was harassed when others, not involved as witnesses to her
EEO complaint, became aware of her status as a complainant.2
The FAD found no discrimination on any alleged basis. In EEOC Appeal
No. 0120063209, the Commission affirmed the FAD. The Commission
specifically noted that, as to issue (1), the agency's request for
updated medical documentation in support of complainant's request to
continue working from home two days per week, was reasonable under the
circumstances. The decision declined to find that the agency violated
the Rehabilitation Act as to issue (1), on the basis that complainant
did not provide adequate medical documentation to explain the need
for her continued work-from-home schedule. The Commission's decision
also found no evidence of disparate treatment, noting that although
complainant states that others were permitted to continue working from
home, the record did not show that there were any such employees who were
similarly-situated to complainant, as well as outside of complainant's
protected groups.3 As to issue (2), the Commission affirmed the FAD's
finding of no discrimination, noting that the alleged retaliatory conduct
did not rise to the level of unlawful harassment.
In her request for reconsideration, complainant asserts that the appellate
decision involved a clearly erroneous interpretation of material fact or
law, and that the appellate decision will have a substantial impact on
the policies, practices, or operations of the agency. In particular,
she notes that in a letter from her doctor, dated April 8, 2005 (which
is contained in the record), the doctor states, in pertinent part: "To
accommodate Ms. Sabbers' disability, she should be kept on her current
work schedule with no overnight travel and commuting into New York City
three days a week." Among other arguments, complainant contends that
this document has been overlooked by the agency and by the Commission.
As to issue (2), complainant disputes the finding of the FAD and the
Commission that the harassment to which she was subjected was not severe
or pervasive enough to be unlawful. She also disputes the determination
that there were no witnesses to the retaliatory statements.
At the outset, we note that in its FAD, the agency failed to acknowledge
that complainant provided the agency with the April 8, 2005, doctor's
letter concerning her request for reasonable accommodation. Further, in
our appellate decision, the Commission failed to specifically acknowledge
that in addition to the doctor's slip date April 4, 2005 stating that
complainant's condition was "unchanged," complainant had also submitted
the doctor's note, dated April 8, 2005, as an attempt to comply with
the agency's request for documentation. Nevertheless, we still concur
with the agency's conclusion that the doctor's notes that complainant
presented during this time period in response to the agency's reasonable
request for documentation, failed to adequately substantiate her need to
continue working from home 2 days per week. The April 8, 2005 letter
merely indicates that commuting into New York City should be limited
to three days per week "[t]o accommodate" complainant's disability.
There is no explanation as to how or why "commuting" into New York City
renders her unable to perform the essential functions of her job or
aggravates her physical condition(s).
Regarding complainant's contention that she has proven that others were
permitted to continue working from home two days per week, as noted in our
appellate decision, the Commission discerns no persuasive evidence that
similarly-situated individuals, outside complainant's protected groups,
were permitted to work from home two days per week during the relevant
time period.
We now address the harassment claim. Complainant has asserted more than
once that there were witnesses to the EEO-related comment of October
12, 2005. Assuming, as complainant alleges, that the secretary and
EEO investigator witnessed the supervisor's yelling from 8-10 feet away
"Are you the EEO guy?", as noted in our appellate decision, this conduct
is simply not sufficiently severe or pervasive to alter the terms or
conditions of employment and create an abusive or hostile environment.
We also are not persuaded that such a statement was reasonably likely
to deter complainant or others from engaging in protected activity.4
In so finding, we note that we do not consider as part of our harassment
analysis, complainant's claim that later in October an associate stated in
a public place that s/he knew complainant had filed another EEO complaint,
because (as the FAD pointed out) complainant never substantiated that
this in fact occurred.
This Commission carefully considered all of the record evidence at the
time it rendered the initial decision in question, and complainant has
offered no persuasive reason why this decision should be reconsidered
now. Therefore, the Commission finds that the request fails to
meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision
of the Commission to deny the request. The decision in EEOC Appeal
No. 0120063209 remains the Commission's decision. There is no further
right of administrative appeal on the decision of the Commission on
this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an
attorney with the Court does not extend your time in which to file
a civil action. Both the request and the civil action must be filed
within the time limits as stated in the paragraph above ("Right to File
A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
______12/24/09____________
Date
1 Complainant alleged that this constituted disparate treatment (because
others were permitted to continue working from home more than one day per
week), as well as a failure by the agency to provide her with reasonable
accommodation. We note that the FAD and the appellate decision addressed
the issue under both analyses.
2 Specifically, complainant alleges that on October 12, 2005, her
supervisor yelled to the EEO investigator and in the presence of
complainant and a secretary "Are you the EEO guy?" In addition,
complainant alleged that, in October 2005, another employee stated
in a crowded lobby that s/he had heard that complainant filed another
complaint.
3 The record indicates that, in the middle of 2004, the agency implemented
a division-wide change in the work at home policy, reducing the maximum
number of days from two to one per week. The change was implemented for a
number of reasons, including abuse and the need for closer communication.
The new policy applied to all employees.
4 The statutory retaliation clauses prohibit any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity.
Petty slights and trivial annoyances are not actionable, as they are
not likely to deter protected activity. More significant retaliatory
treatment, however, can be challenged regardless of the level of harm.
As the Ninth Circuit has stated, the degree of harm suffered by the
individual "goes to the issue of damages, not liability." Hashimoto
v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of
Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) ("the questions of statutory
violation and appropriate statutory remedy are conceptually distinct.
An illegal act of discrimination-whether based on race or some other
factor such as a motive of retaliation - is a wrong in itself under
Title VII, regardless of whether that wrong would warrant an award of
[damages]"). The retaliation provisions set no qualifiers on the term
"to discriminate," and therefore prohibit any discrimination that is
reasonably likely to deter protected activity. A violation will be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees. EEOC Compliance Manual
on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998).
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0520080799
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0520080799