01a03119
04-25-2003
Cindy Keller v. United States Postal Service
01A03119
April 25, 2003
.
Cindy Keller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service.
Appeal No. 01A03119
Agency No. 4-I-680-0122-98
Hearing No. 320-99-8319X
DECISION
INTRODUCTION
Complainant timely initiated an appeal with this Commission from
the agency's final action concerning her formal complaints of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, this Commission affirms in part, and reverses
in part the final agency action.
ISSUES PRESENTED
The issues presented herein are whether complainant has established, by
preponderant evidence, that she was discriminated against on the basis
of disability (plantar fasciitis/overuse syndrome) when the floor mats
and other items that were removed from her work area were not replaced,
she was denied a reasonable accommodation, and she was subjected to
harassment; and that she was discriminated against on the basis of
reprisal (prior EEO activity) when she was issued a notice of removal.
BACKGROUND
Complainant, employed by the agency as a Part-Time Clerk at the time of
the alleged discriminatory events, filed two formal complaints on August
18, 1998 in which she alleged what has been identified as the issues
presented.<1> The agency accepted both complaints for investigation.
At the conclusion of the investigation, the agency apprised complainant
of her right to elect either a hearing before an EEOC administrative judge
(AJ) or an immediate final decision from the agency. Complainant elected
the former. The AJ administratively consolidated both complaints, and
conducted a single hearing on August 29 and 30, 1999. On January 18,
2000, the AJ issued a decision finding that the agency had not engaged
in discrimination as alleged by complainant. The agency's final action
implemented the AJ's findings. This appeal followed.
Information in the evidentiary record indicates that upon reporting
to work on April 21, 1998, complainant discovered that her work areas
had been rearranged. Specifically, she discovered that the floor mats
had been removed from her work areas. Her calculator, rest bar, and
the sponge and water bowl complainant used to seal envelopes had been
removed as well. Complainant also discovered that changes had been made
to areas outside of her work stations. For example, cases had been moved,
sortation slots had been changed, the racks for mail sacks and the table
in the break room had been removed. Complainant noticed that the floor
mats had not been removed from the work areas of her co-workers.
Complainant's supervisor, the responsible management official (RMO),
stated that she removed complainant's floor mats because they were
curled at the edges, unsafe, and dirty. She further stated that she
did not remove the mats from the other work areas because they were in
good condition. According to the RMO, she removed the rest bar because
it was too large for the small post office, and was not needed because
of the small quantity of mail that needed to be sorted. She removed
the sponge and water bowl because they were not needed as the office
used very few gummed stamps. She removed the sack racks because they
were not needed due to the small size of the post office. Finally,
she removed the table from the break room because it was too large and
was visible from the customer service area. The RMO stated that she
did not recall removing complainant's calculator.
Within about two hours of working in her rearranged work areas,
complainant's feet and legs began to ache. She asked the RMO about the
floor mats and the RMO stated that she removed them because they were
in poor condition.
On May 11, 1998, complainant visited a doctor for the pain in her
feet and legs that she had been experiencing since the floor mats were
removed. The doctor diagnosed complainant as suffering from early left
plantar fasciitis and overuse syndrome. He prescribed medication for
the inflammation and heel cups for complainant to wear in her shoes.
He indicated to complainant that she should not work on concrete floors.
Complainant did not present any restrictions to the agency at that point.
Upon arriving to work on June 17, complainant was confronted by the RMO.
The RMO yelled at complainant, telling her that she was late and not
in uniform. Complainant stated that she was on time and in uniform.
The RMO asked complainant why she had clocked out early the prior
evening. Complainant feared that the RMO was going to strike her.
The RMO admitted that she spoke to complainant very strongly in a raised
voice about arriving and clocking out in a timely manner. But she denied
acting inappropriately.
On June 22, complainant visited her doctor again. This time, he
prescribed physical therapy for a period of two weeks; two or three
times each week. Also, he suggested that complainant file a workers'
compensation claim. Complainant did so the next day. On June 24, the
RMO learned from the Office of Workers' Compensation Programs (OWCP) that
complainant had filed an injury claim. The RMO's supervisor instructed
the RMO to order complainant a floor mat. She did so immediately.
The floor mat did not arrive until July 14. The RMO only ordered one
floor mat .When complainant learned on July 14 that only one floor
mat had been ordered, she explained to the RMO that she (complainant)
worked in more than one area. Although there is some dispute between
the RMO and complainant as to the exact wording of the conversation,
the RMO admitted at the hearing that she expected complainant to drag
the one floor mat to her various work stations.
To better cope with the pain in her legs and foot, complainant wore heel
cups, rotated her shoes, did stretch exercises, used ice, and took Advil.
While those things increased the amount of time complainant could stand
without significant pain, complainant still could not stand for more than
one to three hours. We note that upon returning home after a regular
work shift, complainant had difficulty cooking or performing other tasks
which required standing. We also note that after complainant's longer
work shift on Saturday, she could barely walk upon returning home.
On July 21, 1998, the RMO issued complainant a Notice of Removal.
The notice charged complainant with failure to lock the lobby door of
the post office at the close of business on July 15, 1998. Complainant
denied that she left the door unlocked. She stated that the key to
the door that the RMO accused her of leaving unlocked hung on a wall
and was readily available to other employees. The RMO was the first to
discover that the door was unlocked on the morning of July 16. Instead of
calling the postal inspectors or police, or conducting an inventory of the
building, she called an agency labor relations representative to report
complainant's alleged misconduct. Complainant stated that the RMO made
the whole thing up in order to remove complainant from her job.<2>
ANALYSIS AND FINDINGS
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).
Reasonable Accommodation
Pursuant to the Rehabilitation Act, an agency is required to make
reasonable accommodations for the known physical or mental limitations
of an otherwise qualified applicant or employee with a disability,
unless the agency can demonstrate that the accommodation would impose
an undue hardship on the operation of its business.
In the present case, the same day she learned of complainant's workers'
compensation claim, which indicated that complainant could only stand
forty-five minutes to an hour before she began experiencing pain, the RMO
ordered a floor mat for complainant. While it is true that the floor
mat was not delivered until July 14, approximately three weeks later,
the AJ found that the agency acted promptly.<3> This Commission agrees
and finds that assuming arguendo that complainant is a person with a
disability, the agency provided her with reasonable accommodation.
The AJ left open the issue of whether a single floor mat for just one
of complainant's work areas, as opposed to a floor mat for each of
complainant's work areas, was sufficient. The AJ did find, however,
that complainant never asked the agency to provide additional floor mats.
But that finding is not supported by substantial evidence. Complainant's
testimony indicates that when she received her mat, she asked the RMO why
she provided only one floor mat when complainant worked in several areas.
According to complainant, the RMO's response was, �You'll just have to
drag [the one floor mat] where you need it.� The RMO testified that she
provided only one floor mat because complainant worked in one station
after her duties were changed, and she (the RMO) felt that only one
mat was necessary. However there is also testimony from the RMO that
complainant worked in other locations. When pressed by complainant's
representative, the RMO admitted that she wanted complainant to drag the
floor mat from one location to another. This admission convinces the
Commission that complainant worked in more than one work area and did ask
the RMO for additional floor mats. However, assuming without finding
that complainant is an individual with a disability, given the short
time between Complainant's request and her subsequent removal (which
is addressed below), the Commission finds that there was insufficient
opportunity for the agency to consider her request.
Disparate Treatment
To the extent that complainant alleged that the removal of the
mats and other items constituted disparate treatment, we note that,
although the initial inquiry in such 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 s/he 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). Here, we find
that the agency has stated legitimate, nondiscriminatory reasons for
its actions. Specifically, the agency stated that complainant's floor
mats were removed because they were unsanitary and unsafe. The agency
also stated that the rest bar was removed because it was too large,
and the other items were removed because they were no longer needed.
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In this case, complainant failed to present evidence indicating that,
under a disparate treatment analysis, the agency's stated reasons for
removing the items at issue were designed to mask discriminatory animus.
Disability-Based Harassment<4>
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Whether the harassment
is sufficiently severe to constitute unlawful employment discrimination
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
Complainant alleges that she was subjected to a hostile work environment
and harassment when the RMO angrily confronted her about arriving
to work late and clocking out after her scheduled departure time.
To establish a claim of harassment, complainant must show that: (1)
she is a member of a statutorily protected class; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).
On this issue, we find that complainant has failed to establish a claim
of discrimination based on disability. The harassing incident at issue
occurred on June 17, 1998. Even assuming complainant is a person with
a disability, the RMO was not aware of complainant's condition until
sometime after June 24, 1998. For that reason, we agree with the AJ
that, because the RMO was not aware of complainant's status at the
time of the harassing incident, complainant has failed to show that
the incident was based on her alleged disability status. Consequently,
this portion of the final agency action is affirmed.
Reprisal Discrimination<5>
Initially, we note that the AJ found that (1) the complainant had engaged
in prior protected activity in that in June she had made a request for
reasonable accommodation; (2) as of June 30, 1998 the RMO knew that
complainant had engaged in protected activity; and (3) complainant was
subjected to an adverse action, namely the removal action. However,
the AJ found that a finding of nexus based on the closeness in time
between the protected activity and the adverse action was not warranted.
The factual basis relied on by the AJ was the evidence that the RMO
treated complainant harshly before complainant engaged in protected
activity and complainant's belief that the RMO's animus was triggered
by grievances filed against a prior supervisor.
After a thorough review of the record, the Commission finds that the AJ
erred as a matter of law when she found no nexus between complainant's
protected activity and the removal action.<6> On July 14, 1998,
complainant requested additional floor mats from the RMO for her leg
and foot pain. The Commission finds that this request constituted
a request for reasonable accommodation, and thus, protected activity.
This is so whether or not complainant is an individual with a disability
entitled to receive reasonable accommodation. See generally EEOC Revised
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under
the Americans With Disabilities Act (October, 2002). The removal action
was initiated two days later, on July 16, 1998.
The record reflects that complainant believed that the RMO's actions
against her were �initially... spurred� by her grievance activity, which
did not involve EEO matters. However, the fact that complainant believed
that the RMO initially was not motivated by retaliatory animus with regard
to EEO activity does not foreclose a finding that the RMO's subsequent
actions were motivated by such animus. At this stage of the analysis,
complainant is not bound to prove the RMO's motivation, but only to allege
a set of facts which give rise to an inference of unlawful discrimination.
Although relevant, the AJ's finding that the RMO treated complainant
harshly from the beginning of their association is appropriately
addressed in the pretext phase of the analysis. In summary, the temporal
relationship between complainant's request for reasonable accommodation
and the initiation of the removal action a mere two days later is
such that a causal connection fairly may be inferred. Accordingly,
complainant has established a prima facie case of reprisal discrimination.
The AJ correctly found that the agency met its burden to articulate a
legitimate, non-discriminatory explanation for complainant's removal.
The charge set forth in the Notice of Removal dated July 21, 1998 was
that complainant left the lobby door of the postal facility unlocked
on the night of July 15, 1998. The agency also stated that complainant
was removed pursuant to the agency's progressive discipline policy.<7>
The AJ did not rule on the credibility of complainant versus the RMO
with regard to the unlocked door incident. The AJ, in determining that
complainant had not established pretext, noted that complainant had
submitted no evidence of a similarly situated employee lacking prior EEO
activity whom the agency had treated more fairly, nor any other evidence
to suggest that the agency's articulated reason for her removal was
based on her EEO activity. However, the AJ found that the key to the
door that complainant allegedly left unlocked hung on the wall and was
readily available for anyone to use. The AJ further found that when the
RMO observed the unlocked door, she did not inventory the building or
call the postal inspectors or the police. Rather, she called a labor
relations representative to report alleged misconduct by complainant.
In light of the extremely brief interval between complainant's protected
activity, of which the RMO clearly was aware; the RMO's expectation that
complainant should drag a single mat to various work areas; complainant's
denial that she left the door unlocked; and the RMO's failure to engage
in an investigation before reporting complainant's alleged misconduct,
the Commission finds that the AJ's finding of no reprisal discrimination
is not supported by the substantial evidence of record. Rather, the
Commission finds that the substantial evidence of record supports a
finding that the RMO either created or seized upon the opportunity to
remove complainant from employment in reprisal for her protected activity
two days prior.<8>
CONCLUSION
After a careful review of the record, including complainant's arguments
on appeal, the agency's response, and arguments and evidence not
specifically discussed in this decision, the Commission partly affirms
and partly reverses the agency's final action and remands the matter
to the agency to take remedial actions in accordance with this decision
and the order below.
ORDER
The agency is ORDERED to take the following remedial action:
(1) The agency shall provide the responsible management official with
training in the area of reprisal discrimination.
(2) The agency shall conduct a supplemental investigation on the issue
of complainant's entitlement to compensatory damages and shall afford
complainant an opportunity to establish a causal relationship between
the agency's reprisal discrimination and any pecuniary or non-pecuniary
losses. Within fifteen (15) calendar days of the date this decision
becomes final, the agency shall give complainant a notice of his right
to submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993))
in support of his claim for compensatory damages within forty-five (45)
calendar days of the date complainant receives the agency's notice.
The complainant shall cooperate in the agency's efforts to compute the
amount of compensatory damages, and shall provide all relevant information
requested by the agency. The agency shall complete the investigation
on the claim for compensatory damages within thirty (30) calendar days
of the date the agency receives complainant's claim for compensatory
damages. Thereafter, the agency shall issue a final decision on the
issue of compensatory damages in accordance with 29 C.F.R. � 1614.110.
The supplemental investigation and issuance of the final decision shall
be completed within one hundred and twenty (120) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
(3) The agency shall consider taking disciplinary action against the
responsible management official identified as being responsible for
the discriminatory actions perpetrated against complainant. The agency
shall report its decision. If the agency decides to take disciplinary
action, it shall identify the action taken. If the agency decides
not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline.
(4) The agency shall complete all the above actions within ninety (90)
calendar days after this decision becomes final.
(5) The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Waterloo Post Office; Waterloo,
Nebraska facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
April 25, 2003
__________________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found
that a violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has occurred
at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment. The United States Postal Service, Waterloo
Post Office; Waterloo, Nebraska facility confirms its commitment to
comply with these statutory provisions.
The United States Postal Service, Waterloo Post Office; Waterloo,
Nebraska facility supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law. The United States Postal Service; Waterloo,
Nebraska facility has been found to have discriminated on the basis of
reprisal when an employee was removed from her job. The United States
Postal Service, Waterloo Post Office; Waterloo, Nebraska facility has been
ordered to take corrective action in the form conducting an supplemental
investigation regarding compensatory damages, and training the responsible
management official in the areas of reprisal discrimination.
The United States Postal Service, Waterloo Post Office; Waterloo,
Nebraska facility will ensure that officials responsible for personnel
decisions and the terms and conditions of employment will abide by the
requirements of all Federal equal employment opportunity laws and will
not retaliate against employees who file EEO complaints.
The United States Postal Service, Waterloo Post Office; Waterloo,
Nebraska facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1One of the complaints concerned the removal of the floor mats and
alleged harassment; the other one concerned the notice of removal.
2Complainant filed a grievance regarding the removal. In response, the
agency returned complainant to work on April 22, 1999, with a long-term
suspension and without backpay. On June 29, 1999, an arbitrator voided
the removal and awarded complainant full back pay.
3The RMO testified credibly that three weeks is a long time to receive
an order, and that she called the company from which the floor mat was
ordered to inquire about the delay. According to the RMO's testimony,
she was informed by the company that because the mats were not in stock,
they had to be made.
4In analyzing this portion of complainant's claim, the AJ considered
whether the harassment was based on disability and reprisal. But based
on complainant's formal EEO complaints and information contained in the
hearing transcript, it is clear that disability is the only basis at issue
regarding complainant's claim of harassment. For that reason, we will
not address reprisal as a basis when examining the issue of harassment.
5When addressing the issue of removal, the AJ analyzed whether complainant
was removed based on disability and reprisal. But complainant's formal
EEO complaints and information contained in the hearing transcript make
clear that reprisal is the sole basis raised by complainant regarding
her removal. As such, we will not consider complainant's disability
status when addressing complainant's removal.
6For purposes of our reprisal analysis, we will not address complainant's
initial contact with an EEO counselor or formal EEO complaint because
evidence in the file suggests that the RMO was not made aware of those
events until August 3, 1998, approximately two weeks after the removal
action.
7The complainant's previous discipline consisted of a letter of warning
dated December 6, 1996; a 7 day suspension issued on January 6, 1997;
and a 14 day suspension issued on May 13, 1998. On December 12, 1998,
the 14 day suspension was overturned by an arbitrator in a step 3
grievance procedure.
8The mere fact that removal was the next step in progressive discipline
does not preclude a finding that the RMO retaliated against complainant
by initiating the removal action in response to complainant's request
for additional floor mats as further accommodation.