01A04080
08-30-2002
Carla Gallegos, Complainant, v. Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.
Carla Gallegos v. Federal Deposit Insurance Corporation
01A04080
August 30, 2002
.
Carla Gallegos,
Complainant,
v.
Donald E. Powell,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01A04080
Agency Nos. FDIC 98-87
FDICEO-990002
FDICEO-990055
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 (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 Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
The record reveals that during the relevant time, complainant was
employed as a Credit Specialist at the agency's Northeast Service Center
in East Hartford, Connecticut. Complainant sought EEO counseling and
subsequently filed three formal complaints on July 17, 1998, January 20,
1999, and April 9, 1999, alleging that she was discriminated against on
the bases of national origin (Hispanic)<1>, color (white), sex (female),
disability (stress), age (D.O.B. April 12, 1953), and reprisal for prior
EEO activity when:
She was harassed by Supervisor 1 when she made an unintentional
computer-processing mistake, and on May 4, 1998, she was threatened with
being "written up" if she made any more computer-processing mistakes;
On August 18, 1998, she was reassigned to Supervisor 2 without prior
warning;
On September 3, 1998, she was informed that her twenty-two year old
son with a disability would not be covered under the agency's Health
Insurance Plan;
On October 13, 1998, she was instructed not to come to the seventh
floor without a union representative and to file her EEO complaints
with the union;
On October 14, 1998, in response to her concerns of a hostile work
environment, Supervisor 2 told her, "if you don't like the hostile
environment, you should quit";
On October 30, 1998, she received a memorandum from Supervisor 2
concerning her "Inability to Listen and Follow Directions";
On November 4, 1998, she was issued a memorandum concerning the "Misuse
of Official Time";
On November 5, 1998, she received a verbal warning in a meeting where
the agency's corporate counsel and a union representative were present;
On November 16, 1998, she received a memorandum memorializing the verbal
warning given to her on November 5, 1998;
On November 17, 1998, her request for a transfer to another supervisor
and unit was denied;
On December 13, 1998, complainant received a memorandum stating that
additional medical documentation was needed before her request for a
reasonable accommodation could be considered; and
On February 2, 1999, Supervisor 2 criticized her work within hearing
range of her co-workers.
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
initially requested a hearing but subsequently rescinded the request in
favor of a final agency decision.
In its FAD, the agency concluded that complainant failed to establish
her claims of discrimination. As to claim (1), the FAD found that
complainant failed to state a claim and, therefore, dismissed the claim
pursuant to 29 C.F.R. � 1614.107(a)(1). As to the remaining claims,
the FAD found that the agency articulated legitimate, nondiscriminatory
reasons for its actions. Furthermore, it determined that the individual
incidents raised in her complaints were not severe and pervasive enough
to establish that she was subjected to a hostile work environment.
On appeal, complainant contends that she has been subjected to unlawful
harassment. She raised concerns she had with the agency when she
was relocated from California to Connecticut.<2> She asks that the
Commission reverse the agency's FAD and find in her favor. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Dismissal of Claim (1)
Upon review of the record, the Commission finds that the agency
improperly dismissed claim (1) in its FAD. We note that, under 29
C.F.R. � 1614.107(a)(1), prior to a request for a hearing in a case,
the agency shall dismiss an entire complaint for stating a claim that is
pending before or has been decided by the agency or Commission. In the
case at hand, the agency dismissed claim (1) in its FAD, well after
complainant made her request for a hearing. Accordingly, we find that
the agency's dismissal in its FAD is inappropriate. The Commission will
address the merits of claim (1) since the claim was fully investigated
and there is sufficient information upon which we may render our decision.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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 Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the 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
Center 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
Service Bd. 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).
For purposes of analysis, the Commission assumes complainant is an
individual with a disability. Upon review, we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions as to
claims (1) - (9), and (12).<3>
As to claim (1), Supervisor 1 averred that complainant's computer capacity
had reached its peak and she downloaded information which caused her
to reach the computer's capacity. The record also indicated that
complainant's downloading affected the work of the entire office by
slowing down its server. Supervisor 1 noted that what complainant had
downloaded was personal and not work related so he counseled her on the
agency's directive on the use of computers.
The Regional Manager stated that the reason for the reassignment raised
in claim (2) was that the agency was undergoing reorganization in the
credit area in August 1998. Complainant had been on extended leave and
her portfolio had been transferred to another employee. Therefore,
she was transferred to Supervisor 2 who needed more employees in his
understaffed department.
Complainant wanted her twenty-two year old son to be included on her
health insurance provided by the agency. Complainant's request was denied
and raised as claim (3). The Personnel Officer indicated that the Federal
Employee Health Benefits program is governed by federal regulations which
indicate who may be covered as a family member. Complainant submitted
documentation in consideration of her request. After reviewing her
request and the documentation, the agency determined that complainant
provided inadequate documentation to support her request. Therefore,
the agency could not accept complainant's son as a covered family member.
Complainant appealed the agency's decision to the Office of Personnel
Management (OPM). It found that based on her son's medical condition,
he had been determined as capable of self-support as well as capable
of handling his normal lifetime functions. Therefore, OPM found that
there was no provision within the regulations that would permit health
benefit coverage for him through her insurance plan.
In claim (4), the Assistant Regional Manager for Administration (Assistant
Regional Manager) averred that on October 13, 1998, complainant came to
him to speak about using two to three days to work on her complaints.
At that time, the Assistant Regional Manager informed her that she
would have to make her request for official time in writing and that
management would work with her to provide reasonable time for her to
complete her complaints. He indicated that complainant became upset
during the meeting because he was not telling her what she wanted to hear.
He also averred that he never told her not to come onto the seventh floor
without a union representative. Instead, he suggested that since there
seemed to be communication issues, it would be better to meet with a
union representative present.
In claim (5), complainant alleged that she was moved to an office across
from a credit technician who she claimed had previously assaulted
her. On October 14, 1998, she raised her concern of a "hostile work
environment" due to the proximity of her work space to the credit
technician with Supervisor 2. He indicated that the Assistant Regional
Manager and the Labor and Employee Relations Specialist (Specialist)
investigated complainant's claim and found that there was no merit to
the alleged assault. It was determined that the credit technician's
glove hit complainant when she was taking the glove off. The record
indicates that complainant e-mailed the credit technician and referred
to the alleged assault as an accident.
On October 30, 1998, complainant received a memorandum from Supervisor 2
concerning her inability to listen and to follow directions as raised in
claim (6). The record indicates that complainant received a memorandum
in which Supervisor 2 stated that complainant would hear what she wanted
or expected to hear as opposed to what was said. Supervisor 2 provided
complainant with an example of not listening correctly. The memorandum
also noted an incident when complainant was directed not to indicate a
problem to a debtor's attorney but instead to work within the agency's
internal attorneys to see if a solution could be worked out. Complainant
called the debtor's attorney contrary to direction and informed the
attorney that a problem might exist. Based on the incidents raised
in the memorandum, Supervisor 2 issued it to complainant so that the
agency's concerns may be addressed.
In claims (7), (8), and (9), complainant raised her concern regarding
the agency's handling of official time. In October 1998, complainant
requested official time to work on her grievances, complaints, and other
issues with the agency from Supervisor 2. He averred that he was not
aware of the agency's procedure regarding official time, therefore,
he spoke with the Assistant Regional Manager, the Specialist, the
agency's Labor Attorney, and agency EEO officials. Supervisor 2 stated
that he noticed that complainant had spent much of her time at work
on her grievances, complaints, relocation reimbursement, and request
for benefits for her son rather than on her job duties. Therefore,
he wanted this request to be an opportunity for him and complainant to
set up parameters regarding reasonable official time. It was determined
that complainant would make her requests for official time to Supervisor
2 and he would determine what would be considered reasonable under
the circumstances. Supervisor 2 averred that complainant failed to
follow the instructions set up during the meeting on official time.
Based on her failure to comply with reasonable official time procedures,
Supervisor 2 issued complainant a memorandum regarding her misuse of
official time. Further, in hopes of clarifying the terms of official
time, Supervisor 2, the Assistant Regional Manager, the Specialist,
the Labor Attorney, and a Union Representative met with complainant on
November 5, 1998. The Specialist averred that complainant called him
the next day and told him that she had been in a fog at the meeting and
did not understand what had gone on. He informed Supervisor 2 that he
should summarize in writing what complainant was told about official
time at the meeting. He averred that the reason for this was to make
sure complainant understood the issue. Therefore, on November 16, 1998,
complainant received a memorandum memorializing the November 5th meeting.
As to claim (12), Supervisor 2 averred that complainant failed to get
any work done. He stated that he had to reassign simple tasks that she
should have been able to perform to other employees with less experience
who were able to complete them within days. He noted that complainant
did not complete the tasks over the weeks she had them assigned to her.
When complainant came to Supervisor 2's office to discuss the reassignment
of tasks, he averred that he told her that she should look in the mirror
at herself. However, he indicated that it was due to her failure to
perform her job duties.
Therefore, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The burden shifts to
complainant to establish that the agency's reasons were pretext for
discrimination. Upon review, the Commission finds that complainant
failed to do so. We note that complainant did not provide any evidence
to substantiate her argument that the agency's reasons were lies.
Complainant's bald assertions are not enough to establish that she was
treated differently because of her protected bases.
Reasonable Accommodation
In claims (10) and (11), complainant claims that the agency failed to
provide her with a reasonable accommodation and required her to provide
medical documentation to substantiate her request. Under the Commission's
regulations, an agency is required to make reasonable accommodation
to the known physical and mental limitations of an otherwise qualified
individual with a disability unless the agency can show that accommodation
would cause an undue hardship. 29 C.F.R. �1630.9. As stated above,
the Commission has assumed, without finding, that complainant is an
individual with a disability.
The Commission notes that an employer does not have to provide an employee
with a new supervisor as a reasonable accommodation. EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans With Disabilities Act (Enforcement Guidance), No. 915.002,
question 32 (March 1, 1999). Accordingly, we find that the agency was
not obligated to provide complainant with her requested accommodation.
Therefore, we conclude that the agency action was not a violation of
the Rehabilitation Act.
Furthermore, we find that the agency's request for medical documentation
was appropriate. The Commission has stated that when the disability
and/or the need for accommodation is not obvious, an agency may ask
the employee for reasonable documentation. Enforcement Guidance, at
Question 6. Reasonable documentation means that the agency may require
documentation to establish that the person has a disability covered
under the Rehabilitation Act and that the disability necessitates a
reasonable accommodation. Id. In the case at hand, we find it was
appropriate for the agency to request reasonable documentation from
complainant in order to determine her need for an accommodation.
Hostile Work Environment
We note that the agency's FAD incorrectly analyzed complainant's claim
of a hostile work environment. In her complaints, complainant alleged
a series of events which allegedly created a hostile work environment.
Instead of treating these events as incidents of the claim of harassment,
the agency looked at them individually to assess if the individual events
rose to the level of a hostile work environment. Thus, we find that
the agency acted improperly by treating matters raised in complainant's
complaint in a piecemeal manner. See Meaney v. Department of the
Treasury, EEOC Request No. 05940169 (November 3, 1994) (an agency should
not ignore the "pattern aspect" of a complainant's claims and define the
issues in a piecemeal manner where an analogous theme unites the matter
complained of). Consequently, the Commission shall review the incidents
raised by complainant as a whole in the context of a claim of harassment.
It is well-settled that harassment based on an individual's national
origin, race, sex, age, disability and/or prior EEO activity is
actionable. In order to establish a claim of harassment under
those bases, the complainant must show that: (1) she belongs to the
statutorily protected classes and/or engaged in prior EEO activity; (2)
she was subjected to unwelcome conduct related to her membership in those
classes and her prior EEO activity; (3) the harassment complained of was
based on national origin, race, sex, age, disability and/or prior EEO
activity; (4) the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg'l Physician
Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp.,
247 F.3d 169 (4th Cir. 2001). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (March 8, 1994). Upon review of the record,
we find that complainant failed to establish a claim of harassment.
We note that complainant merely argues without evidence that the agency's
actions were because of her protected bases and/or activity. However,
we find her bald assertions insufficient to establish that she was
subjected to a hostile work environment.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 30, 2002
__________________
Date
1Although complainant also alleged discrimination on the basis of race
(Hispanic), the Commission notes that it considers the term "Hispanic"
to be a national origin rather than a racial group.
2The Commission notes that complainant alleged that the agency failed to
properly handle her relocation reimbursement in a prior EEO complaint
which was the subject of Gallegos v. Federal Deposit Insurance Corp.,
EEOC Request No. 05A00288 (November 22, 2000), denying RTR, EEOC Appeal
No. 01990903 (November 23, 1999). Therefore, the Commission will not
address this matter.
3The Commission notes that in claims (10) and (11), complainant alleged
that the agency failed to provide her with a reasonable accommodation.
Therefore, we shall not address the matter in terms of a claim of
disparate treatment.