0120122791
12-07-2012
Cynthia C. Carr, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cynthia C. Carr,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122791
Hearing No. 541-2007-00027X
Agency Nos. 2003-0339-2006101264
2003-0339-2007100635
2003-0339-2008101942
2003-0339-2009100402
DECISION
On June 21, 2012, Complainant filed an appeal from the Agency's May 18, 2012, final order concerning her equal employment opportunity (EEO) complaints 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., 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Clerk at the Agency's Regional Office Mail Room facility in Denver, Colorado.
Complainant filed four separate EEO complaints, which were eventually consolidated at the hearing level, alleging that the Agency discriminated against her on the bases of sex (female), disability (cerebral palsy, mild mental retardation, post traumatic stress disorder, severe delay in expressive and receptive language and Marfans Syndrome), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when she was subjected to a hostile work environment from January 2006 through February 2009.
Complainant alleged a series of events in support of her claim. She indicated that the Team Leader would treat her differently with regard to her time and attendance by monitoring her breaks and lunches. She also believed that the Team Leader did not treat her with dignity and respect. She asserted that he would "holler" at her and question her about where she had been when she was on her break. In December 2006, the Supervisor allegedly belittled Complainant and asked her if she took her medication. Complainant indicated that management did not inform her of her performance reviews in July and August 2008.
Complainant alleged that she was subjected to disciplinary actions which she believed were discriminatory. Complainant indicated that she was discriminated against when she was issued letters of reprimand on September 14, 2007 and November 29, 2007. In February 2008, Complainant was issued a letter of counseling concerning her use or abuse of sick leave. Effective June 30, 2008, Complainant was suspended for three days. In May 2008, Complainant was accused of deliberately refusing to carry out an order.
In addition, Complainant alleged that she was not permitted to work on a work computer or use her phone to work on her EEO complaint. She indicated that this occurred in March 2008. Finally, Complainant asserted that she was "denied a reasonable accommodation in November 2007.
At the conclusion of the investigations into her complaints, the Agency provided Complainant with a copy of the reports of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). The AJ consolidated Complainant's complaints. Complainant timely requested a hearing and the AJ held a hearing on January 20 - 21, 2011, February 23-25, 2011, and March 17, 2011. Following the six-day hearing, the AJ issued a decision on April 13, 2012.
The AJ issued a decision laying out her findings of facts, including credibility determinations of the various witnesses, based on the AJ's review of the record and the six-day hearing which included twelve witnesses. The AJ related the history of Complainant's employment problems with management. The AJ noted that Complainant had submitted her request for an accommodation in April 2008, for ear protection which was granted in May 2008. Accordingly to the AJ, management made adjustments to the way instructions were provided to Complainant in a reasonable way given her conditions. Despite the given assignments, Complainant's co-workers averred that Complainant would not start work or complete it. The evidence showed that management would repeat instructions so that Complainant was clear about expectations. Complainant was provided with performance reviews every month. From September 2007 to December 2007, the AJ determined that despite the lack of medical documentation, Management provided Complainant with reasonable accommodation by reducing Complainant's job duties, using plain language, and providing her with training so that she could perform her assignment.
The AJ found that Complainant is an individual with a disability, but Complainant failed to show that she was qualified. The AJ determined that Complainant was unable to perform the essential functions of her job with or without an accommodation. Specifically, the AJ noted that management provided Complainant with training and yet she still made significant errors while she performed her position. The AJ stated that the Agency had also modified how assignments were communicated to her and what job duties Complainant performed. Despite all the changes, the AJ found that Complainant still made critical mistakes. Therefore, the AJ concluded that Complainant failed to establish that she is a qualified individual with a disability under the Rehabilitation Act.
The AJ then turned to Complainant's claim of disparate treatment. The AJ determined that Complainant failed to establish a prima facie case of discrimination based on her disability, sex and/or age. Further, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. For example, the AJ held that Complainant was issued the reprimand in September 2007, based on Complainant's accusation the Team Leader made objectionable statements on a day the Team Leader was not at work. Complainant was also issued a reprimand in November 2007, because she failed to adhere to leave procedures, and a letter of counseling in February 2008, for abuse of sick leave. Based on Complainant's continued patter of leave abuse, the Supervisor issued a proposed suspension. The AJ found that management provided credible testimony in support of their actions. Further, the AJ noted that Complainant was unable to show that the Agency's reasons were pretext for discrimination. As such, the AJ concluded that Complainant failed to show she was treated differently due to her protected bases. To the extent Complainant asserted that the same alleged events constituted unlawful retaliation, the AJ found that Complainant established a prima facie case of reprisal. However, the AJ noted that the Agency provided legitimate, nondiscriminatory reasons which Complainant failed to show were pretext for reprisal.
The AJ analyzed Complainant's claim of harassment based on her sex, age and disability. The AJ found that Complainant failed to establish her claim because she failed to show that the alleged conduct was due to her protected bases. The AJ noted that there was no evidence establishing that management was motivated by animus towards Complainant's age, sex or disability. As such, the AJ concluded that Complainant did not establish that she was subjected to a hostile work environment due to her protected bases.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed.
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). 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, at � VI.B. (November 9, 1999).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). 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 final agency order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action implementing the AJ's findings and conclusions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 7, 2012
__________________
Date
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0120122791
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122791