0120080585
06-04-2010
Berta N. Garza, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Berta N. Garza,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120080585
Hearing No. 451200700137X
Agency No. ARCCAD06FEB0037
DECISION
On November 16, 2007, complainant filed an appeal from the agency's
October 17, 2007 final order concerning her 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 appeal
is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
ISSUES PRESENTED
1. Whether the EEOC Administrative Judge (AJ) properly conducted a
hearing by video conference; and
2. Whether substantial evidence supported the AJ's finding that
complainant had not been discriminated against on the bases of gender
and disability.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Stripper Jet Operator (FlashJet Operator) at the agency's Army Depot
in Corpus Christi, Texas. The record reflects that, on October 9, 2004,
complainant sustained an injury while on the job. Subsequently, she was
diagnosed with a herniated and bulging disk. Complainant continued to
work, however, until December 19, 2004, at which time she took leave under
Worker's Compensation. On September 29, 2005, complainant returned to
work with medical restrictions consisting of: no lifting over ten pounds;
no walking of more than four minutes in an hour; no bending more than
10 minutes in an hour; no pushing, pulling, carrying, or twisting while
standing with more than ten pounds of force for 30 minutes in an hour;
no work that requires an awkward position of the spine; and no twisting.
Upon returning, complainant was assigned to the Manufacture Process,
Fabrication and Coating Division, Blasting Shop, where she worked under
the supervision of the Sandblasting Supervisor (S1). In this capacity,
complainant was assigned to administrative work, which did not exceed her
medical restrictions. After one week, however, complainant requested
to be reassigned to the FlashJet system in Manufacturing Process.
Among other reasons, complainant wanted to continue her training in
order to meet the requirements for promotion to the WG-10 level.
The record indicates that between October 2005 and September 2006,
complainant was assigned to various shops within the Manufacture Process,
Fabrication and Coating Division. However, management denied complainant's
request to work in the FlashJet area on the grounds that complainant's
medical restrictions prohibited the physical demands that this position
entailed. Management also informed complainant that there was an
insufficient workload to support her assignment to the FlashJet area.
Consequently, complainant was not assigned to her requested position
of FlashJet Operator, and she was unable to complete her training and
subsequently was not promoted to the WG-10 level.
The Stripping Equipment Operator, WG-5401-08, position description states
that:1
Work assignments require standing, stooping, landing, kneeling, reaching,
climbing, crawling, and crouching in strained and awkward positions for
prolonged periods at various heights up to 20 feet. Requires lifting,
carrying, and setting up equipment and components weighing up to 35 pounds
without assistance; heavier items are handled with assistance. Required
to work on ladders, scaffolds, platforms, or lifting tables where
items/surfaces being processed are hard lo reach.
On March 27, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of sex (female) and disability
(Back) when:
1. Her request for reassignment to the Airframe Cleaning Shop as
a reasonable accommodation was denied.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On September 13, 2007, the AJ conducted a hearing by
video conference, and the AJ issued a bench decision later that day. The
agency subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that she was subjected to discrimination as
alleged.
AJ's DECISION
The AJ, among other things, found that assuming arguendo complainant was
an individual with a disability, the agency was not obligated to offer
her a specific accommodation, such that she would remain in the FlashJet
position. The AJ determined that the alternative light-duty positions
that the agency provided complainant were effective accommodations for
her disability. With regard to complainant's sex discrimination claim,
the AJ found that there was no evidence that the agency provided male
employees with more favorable treatment. Accordingly, the AJ found that
complainant failed to show that the agency discriminated against her on
either the bases of disability or sex.
CONTENTIONS ON APPEAL
On appeal, complainant, as presented by her non-attorney representative,
contends that the AJ improperly found that she was not discriminated
against on the basis of her disability. Complainant contends that she has
difficulty stooping, lifting, and other activities such as sweeping and
moping. Complainant further contends that she is a qualified individual
with a disability and could perform the essential job functions with
or without an accommodation. Complainant contends that moving the
hydraulic lift jacks was the sole duty she could not perform without
assistance. Complainant notes, however, that coworkers had agreed to
assist her with this task and therefore this was not an impediment
to her fulfilling the essential job duties required of the FlashJet
position. Accordingly, complainant contends that the agency failed to
provide her with a reasonable accommodation when it failed to allow
complainant's coworkers to assist her.
Complainant also alleges that, on February 26 or 28, 2006, her
coworkers were to receive training in the Cimrock Computer System.
Complainant notes, however, that she was denied the opportunity to attend
this training because the agency moved her from the Airframe Cleaning
Shop to the General Paint Shop. Further, complainant contends that the
certification requirement for WG-10 promotion was to strip five aircraft,
which she alleged that she had performed. Finally, on these grounds,
complainant contends that the AJ improperly found that she could not
perform the essential duties of her job. Accordingly, complainant
contends that the AJ's decision was not supported by substantial
evidence.
On appeal, the agency contends that the AJ's decision should be
affirmed.
ANALYSIS AND FINDINGS
As a preliminary matter, we note that in Allen v. United States Postal
Service, EEOC Appeal No. 01A51259 (May 31, 2006), the Commission addressed
the propriety of conducting a hearing via video-conference. In Allen, the
Commission noted that video conferencing offers a level of observation and
direct communication unavailable in a telephonic hearing, and provides
a sense of presence and judicial decorum that cannot be conveyed by
telephone. The Commission further found that, while the Commission's
preference remains that hearings be held in person, with appropriate
safeguards, video conferencing may provide an acceptable alternative to
an in-person hearing, allowing the Commission to provide more, and more
efficient, service to the federal sector.
In Allen, the Commission outlined a number of factors to consider
before deciding to conduct a hearing by video conference. These
factors include the availability and proximity to the participants
of the video-conferencing facilities; the adequacy of the available
video-conferencing facilities, including any technological issues; the
cost to the respondent agency (if any) balanced against the savings
in travel time for all parties, and the AJ; the number of expected
participants; and the objections of the parties, if any. Should a party
object to conducting the hearing by video conference, the AJ should
document for the record both the nature of the objection and his or her
ruling on the objection, including the reasons therefore. Finally, the
AJ, before proceeding with a video conference hearing, must ensure that
the hearing will provide a "fair and reasonable opportunity to explain
and supplement the record and, in appropriate instances, to examine and
cross-examine witnesses." EEOC Management Directive 110, Section 7-1
(revised November 9, 1999).
In the instant case, the record indicates that the parties did not
object to a hearing by video conference either prior or subsequent to
the hearing. In the absence of evidence to the contrary, the record also
reflects that the hearing preceded without technological difficulties
or other problems such as would disrupt or otherwise interfere with
the quality of witness testimony. Finally, as the instant case
involved only a single complainant, the number of individuals present
in the hearing room was confined to a limited, manageable number of
individuals. Accordingly, applying these factors to the aforementioned
precedent, we find that the AJ did not abuse his discretion in conducting
a hearing by video conference.
We next address complainant's contentions as made on appeal. We note that
as a general rule, no new evidence will be considered on appeal unless
there is an affirmative showing that the evidence was not reasonably
available prior to or during the investigation. EEO Management Directive
for 29 C.F.R. Part 1614, Ch. 9 � VI. A. 3. (1999) (MD-110). On appeal,
complainant seeks to introduce a new claim that she was denied training on
February 26 or 28 2006. This matter was not accepted for investigation
and therefore was not adjudicated by the AJ. Accordingly, this matter
is not properly before the Commission and will not be addressed herein.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion." Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding. See
Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held. An AJ's credibility determination based on
the demeanor of a witness or on the tone of voice of a witness will be
accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable
fact finder would not credit it. See EEOC Management Directive 110,
Chapter 9, � VI.B. (November 9, 1999).
Denial of Reasonable Accommodation
Under the Commission's regulations, 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 cause an undue hardship. 29 C.F.R. �� 1630.2(o)
and (p). The Commission also notes that an employee must show a nexus
between the disabling condition and the requested accommodation.
See Wiggins v. United States Postal Serv., EEOC Appeal No. 01953715
(April 22,1997). As a threshold matter, complainant must establish that
she is an "individual with a disability."
Assuming, arguendo, that complainant established that she is a qualified
individual with a disability, we find that there is substantial evidence
in the record to support the AJ's determination that she failed to
establish that she was denied a reasonable accommodation when the
agency failed to reassign her to a FlashJet Operator position. Like the
AJ, we note that the agency did provide complainant with a reasonable
accommodation that allowed her to continue working. The record indicates
that complainant had medical restrictions consisting of no standing,
or sitting more than two minutes in an hour; no walking more than four
minutes in an hour; no bending, more than 10 minutes in an hour; no
pushing, pulling, carrying, or twisting while standing with more than
ten pounds of force for 30 minutes in an hour; no work that requires an
awkward position of the spine; and no twisting. Management testified
that because of these restrictions, complainant could not perform the
essential physical requirements of the FlashJet Operator position,
which included climbing, squatting, hunching, pushing, and pulling.
Management also testified that it had been in communication with
complainant throughout the nine-month period while she was on leave. As a
result of this interactive process, the record indicates that management
provided complainant with a light-duty desk job, where she performed
clerical work. However, complainant sought to be reassigned, in part,
to better her promotion potential. Subsequently, management assigned
complainant to a light-duty position where she cleaned small aircraft
parts. Management testified that they assigned complainant to this
area because the work was within her medical restrictions.
Moreover, beyond complainant's inability to perform the essential job
functions, management testified that due to production reasons, her work
as a FlashJet Operator was no longer needed. Management testified that
during the period of September 2005 through December 2006, it did not
have an aircraft to strip. The record reflects that during this period,
FlashJet operations were over-staffed in relation to the demand to strip
aircraft. Accordingly, given the absence of work, management testified
that it would have been an inefficient use of government resources to
employ complainant in a unnecessary position.
In response, complainant contends that the agency could have provided
a reasonable accommodation. Specifically, complainant contends that
co-workers had agreed that they would assist her in moving the heavy
hydraulic jacks, which would have enabled her to perform the requirements
of the Stripper Operator position. Management testified, however,
that FlashJet Operators were expected and required to strip aircraft
without the assistance of other operators. Moreover, complainant
failed to show that her medical restrictions permitted her to perform
the essential job functions required by said position as outlined
above. Further, complainant does not address the agency's legitimate,
nondiscriminatory reason that the workload for the FlashJet area had
diminished to such a degree that work was no longer available. Indeed,
the record reflects that three of the four original individuals assigned
to Stripper Operator training were reassigned to other positions with
the agency due to an inadequate workload. Finally, complainant fails
to address management's testimony that it did provide her with effective
accommodations. Specifically, the record indicates that management engaged
complainant in an interactive process to determine the extent of her
restrictions and her ability to perform light-duty work. Based on the
totality of the record, we find that the AJ correctly determined that
management provided complainant with several light-duty job positions
as an effective accommodation, which were permitted by her medical
restrictions. We further find substantial evidence to support the AJ's
determination that complainant was not qualified to perform the essential
functions of a position as a FlashJet Operator.
Sex Discrimination
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (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. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming arguendo that complainant established a prima facie case of
sex discrimination, we nonetheless find that there is substantial
evidence in the record to support the AJ's finding that the agency
articulated legitimate, non-discriminatory reasons for its actions,
and that complainant failed to establish pretext. The record indicates
that three male co-workers (comparators) commenced work as FlashJet
Operators in February 2005, while complainant, according to management,
started afterward. Management testifies that at the time complainant took
leave, in December 2004, she was not qualified for the WG-10 promotion.
As of February 2006, approximately two-and-a-half months later, three
male co-workers (comparators) were promoted. According to management, as
of February 2006, the comparators had achieved one year of training. In
contrast, management testified that complainant had only accrued eight
months of training. Management testified that it was not possible to
provide complainant with training while she was on leave as the training
required hands-on experience. Further, during their additional training,
management testifies that the comparators had stripped an additional
four aircraft beyond what complainant had stripped. Therefore, unlike
complainant, management testified that the comparators had stripped
the required number of aircraft necessary to qualify for the WG-10
promotion.
On appeal, complainant broadly contends that the certification required
that a FlashJet Operator strip five aircraft. Complainant further
argues on appeal, without providing any substantiating evidence, that
she fulfilled this requirement. Concomitantly, complainant adds that she
"could have stripped five aircrafts with the accommodations she arranged
to have on her own." However, as management testimony indicates,
FlashJet Operators were required and expected to perform the job duties
without the assistance of a coworker. Given the ambiguity of complainant's
assertions, coupled with an absence of supporting evidence, we find that
complainant fails to show that the agency's reasons are pretextual.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's decision was supported by substantial
evidence and a preponderance of the record evidence does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 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 (S0408)
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 (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
___6/4/10_______________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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