Alexandra H. Sabbers, Complainant,v.Paul F. Prouty, Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionDec 24, 2009
0520080799 (E.E.O.C. Dec. 24, 2009)

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

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0520080799