01975093
08-03-2000
Barrie Todd, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Barrie Todd v. Department of the Interior
01975093
August 3, 2000
Barrie Todd, )
Complainant, )
) Appeal No. 01975093
v. ) Agency No. FWS95039
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq. <1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). Complainant alleged that she was discriminated
against on the bases of sex (female), mental disability (stress reaction
syndrome, anxiety, insomnia, depression), physical disability (muscle
spasms and back pain) and reprisal.
The record reveals that during the relevant time, complainant was employed
as a Fish and Wildlife Biologist (GS-11) at the agency's Ventura Field
Office. In her initial request for counseling, complainant asserted
that she was discriminated against after she openly refused to go along
with her supervisor's unethical and illegal agenda of preselection
and preferential treatment of her staff. In retaliation, the agency
allegedly subjected complainant to a highly emotional and stressful work
environment. Complainant argued that stress from her work environment
caused her disabilities.
BACKGROUND
Complainant sought EEO counseling on February 2, 1995. Complainant
subsequently filed a formal complaint on March 17, 1995. In her formal
complaint, complainant alleged that she was discriminated against by
the following specific incidences (SI):
(1) on December 20, 1993, upper management removed a biological
technician position from her division without her approval or concurrence
as the Assistant Field Supervisor;
on May 9, 1994, while she was on maternity leave, management made
a decision to promote one of her employees without her knowledge or
approval;
from May 1994, to July 1994, several decisions made by her during
meetings were not supported by management and her supervisory authority
was undercut;
on July 8, 1994, management denied her request to be promoted to the
GS-12 level;
on August 10, 1994, management directed her to give two awards to her
employees;
on August 18, 1994, after her performance appraisal was signed by all
parties, management included an attachment to her appraisal without
her knowledge;
on November 23, 1994, her [Deputy Field Supervisor (RMO2)] informed
her that her supervisory authority and title were being removed;
on November 25, 1994, management intentionally withheld knowledge of
a vacant Environment Contaminants position which prevented her from
applying for the position;
on December 22, 1994, and January 23, 1995, management denied her
requests to work at home;
on December 22, 1994, her supervisor accused her of stealing and
abusing her government credit card;
on December 28, 1994, her supervisor denied her the opportunity
to recruit for the position of Environment Contaminants, although
management had previously given her that authority;
on January 10, 1995, management denied her request for advanced leave;
on February 14, 1995, she received a letter that questioned her time
and attendance;
on February 25, 1995, she received copies of her time and attendance
sheets with unauthorized changes made by another employee;
on December 14, 1994, her request for an objective observer during
two meetings was denied;
on December 22, 1994, her decision to send an employee to training
was denied; and
on January 26, 1995, her request for advanced leave was denied.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision. By FAD dated April 29,
1997, the agency dismissed some SI for untimely counselor contact and
found that complainant did not establish retaliation and/or discrimination
with respect to others.<2> From this FAD, complainant now appeals.
Complainant named the Field Supervisor (RMO1), and the Deputy Field
Supervisor (RMO2) as the responsible agency officials. RMO1 was
complainant's immediate supervisor until August 1994. In August 1994,
RMO2 replaced RMO1 as complainant's immediate supervisor. RMO1 and
RMO2 categorically deny discriminatory and retaliatory wrongdoing.
RMO1 recruited complainant for her position as Assistant Field Supervisor.
Despite having the technical expertise required for the position,
RMO1 indicates that complainant failed to unify and lead her staff to
complete projects. As complainant's supervisor, RMO1 admits overruling
complainant's directives, and second-guessing complainant's management
decisions. The record makes clear that as complainant's supervisor,
RMO1 had the authority to overrule complainant's management decisions.
Additionally, RMO1 says that he had no knowledge that complainant believed
herself to be mentally or physically disabled.
RMO2 admits placing complainant's promotion on hold. RMO2 reports
that she told complainant that she must do the following to earn
a promotion: (1) work with staff to develop mutually agreed upon
priorities for the division; (2) mutually, as a group, select one of
the priorities to complete; and, (3) implement the selected priority.
When RMO2 determined that complainant was not working along with her
team, she put complainant's promotion on hold and organized meetings
to discuss the relevant problems. RMO2 says that complainant did not
attend any of the meetings she planned. RMO2 recalls that complainant's
management style was military-like and dictatorial. While supervised
by RMO2, the agency removed complainant's title of supervisor, but RMO2
maintains that complainant kept the same position description and that
she retained authority to supervise her division. According to RMO2,
the agency's classification specialist determined that complainant's
title was not consistent with agency standards. Furthermore, RMO2
states that complainant was given several opportunities to increase her
staff so that she could keep her title.
The Assistant Regional Director of the agency made the decisions regarding
complainant's requests to work at home and for advanced sick leave.
According to the record, the agency advanced complainant 200 hours
of leave so that she could make a full recovery from her illness.
The agency denied complainant's request to work from home because her
duties required her to be on-site and at the office to provide advice and
counsel regarding chemical spills as they occurred. The record reveals
that complainant's supervisors also expected her to remain on-site to
supervise staff.
ANALYSIS AND FINDINGS
I.
Complainant alleges that the agency's actions were retaliatory. A prima
facie case of retaliation is established where complainant has produced
sufficient evidence to show that (1) she engaged in protected activity;
(2) the agency was aware of his or her participation in the protected
activity; (3) she was subjected to an adverse employment action; and (4)
a nexus exists between the protected activity and the agency's adverse
action. Hochstadt v. Worcester Foundation for Experimental Biology, 425
F. Supp. 318, 324 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976);
Van Druff v. Department of Defense, EEOC Appeal No. 01962398 (February 1,
1999).
Complainant admits that she has never been previously involved in
protected EEO activity prior to the instant complaint. Since SI 13
and 14 occurred after the initiation of the instant complaint, we will
consider whether complainant established retaliation with respect to
these specific incidences. However, complainant failed to establish
reprisal with respect to SI 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 15,
because she admits that she had not yet engaged in protected activity.
II.
Complainant says that she was discriminated against because of her
disability and that the agency failed to accommodate her disability.
An agency is required to make reasonable accommodation to the known
physical and mental limitations of a qualified individual with a
disability unless the agency can show that accommodation would impose
an undue hardship. 29 C.F.R. � 1630.2(o); 29 C.F.R. � 1630.2(p); 29
C.F.R. � 1630.9. As a threshold matter, a person claiming protection
under the Rehabilitation Act must show that she is an individual with a
disability as defined therein. Drummond v. Department of the Army, EEOC
Petition No. 03990069 (March 6, 2000). An individual with a disability
is one who has, has a record of, or is regarded as having, a physical
or mental impairment that substantially limits one or more major life
activities. 29 C.F.R. � 1630.2(g). The phrase "major life activities"
means "functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working." 29
C.F.R. � 1630.2(i).
The term "substantially limits" means:
(i) Unable to perform a major life activity that the average person in
the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major
life activity.
Id. at � 1630.2(j)(1). The ADA regulations further provide:
The following factors should be considered in determining whether an
individual is substantially limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or
long term impact of or resulting from the impairment.
Id. at � 1630.2(j)(2).
The record contains statements from complainant's doctors and various
documents related to complainant's worker's compensation claims.
These submissions reveal that complainant sought treatment for working
in a stressful work environment while suffering from medical problems.
While the record contains recommendations for work at home and time off,
the record does not sufficiently explain how complainant was limited in
a major life activity.
After reviewing the evidence of record, the Commission finds that
complainant has failed to show that she has a disability as defined in
29 C.F.R. � 1630.2(g). While complainant has received some treatment,
complainant has failed to show how stress reaction syndrome, anxiety,
insomnia, depression or muscle spasms and back pain substantially limit a
major life activity as set forth in 29 C.F.R. � 1630.2(i). Furthermore,
the record contains insufficient evidence to establish that complainant
has a record of disability or that any agency official regarded
complainant as having a disability. Accordingly, the Commission finds
that complainant is not an "individual with a disability" within the
meaning of the Rehabilitation Act.
III.
With respect to complainant's remaining reprisal and sex discrimination
contentions, we note that these are allegations of disparate treatment.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973).
Although the initial inquiry in discrimination and reprisal cases usually
focuses on whether the complainant has established a prima facie case,
following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983).
Complainant charges that the agency questioned and altered her time
and attendance records. RMO2 denies altering complainant's time and
attendance records. RMO2 indicates that she questioned complainant's
leave usage for the legitimate purpose of keeping accurate records.
Complainant fails to rebut the agency's reasons and as such, complainant
failed to establish that she was retaliated and/or discriminated against
with respect to her time and attendance contentions.
In various ways, complainant also alleges that the agency stripped her
of supervisory authority. The agency admits and defends its actions
saying that complainant failed to adequately manage her staff. It is
undisputed that complainant's managers acted within their discretion when
they overruled her directives, or usurped her supervisory authority.
After careful review of the record we find that complainant failed to
establish that the nondiscriminatory reasons articulated by the agency
for the various challenged actions were pretext for retaliation or
discrimination.
CONCLUSION
Accordingly, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
August 3, 2000 _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 We will not consider whether the agency correctly dismissed a portion
of the instant complaint. For the purpose of the instant analysis,
we will treat the entire complainant as a timely-counseled series of
related allegations. See Reid v. Department of Commerce, EEOC Request
No. 05970705 (April 22, 1999).