01a44600
10-27-2004
Deborah R. Growitz, Complainant, v. Lawrence M. Small, Secretary, Smithsonian Institution, Agency.
Deborah R. Growitz v. Smithsonian Institution
01A44600
October 27, 2004
.
Deborah R. Growitz,
Complainant,
v.
Lawrence M. Small,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 01A44600
Agency No. 99-11-122198
Hearing No. 100-99-7935X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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., and
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, the Commission AFFIRMS
the agency's final order.
The record reveals that, during the relevant period, complainant was a
Program Manager assigned to the agency's Corporate Membership Program
in the Office of Membership and Development. On December 17, 1998,
complainant filed a formal EEO complaint alleging that the agency had
discriminated against her on the bases of disability (obsessive compulsive
disorder and depression) and in reprisal for prior EEO activity when she
was not accommodated to attend doctor's appointments, allegedly harassed,
unfairly criticized and ultimately removed during her probationary period.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The administrative judge granted the agency's motion for
a decision without a hearing. The agency fully implemented the AJ's
decision in its final order. Complainant appealed and the Commission
reversed the agency's final order, finding that there was a genuine
issue of material fact concerning the reason for complainant's removal.
We remanded the case for further processing. See Deborah Growitz
v. Smithsonian Institution, EEOC Appeal No. 01A15047 (May 3, 2002).
Following a hearing that was held on March 17 and 29, 2004, the AJ
issued a decision finding no discrimination. The AJ concluded that
complainant did not prove by preponderant evidence that she was either
discriminated or retaliated against as alleged. Specifically, the AJ
found that complainant failed to demonstrate that the agency failed
to accommodate her disability. The AJ noted that her supervisor (S1:
no known disability, no know prior EEO activity) offered unrebutted
testimony that no one was aware of complainant's disability. The AJ
also found that complainant was unable to establish a prima facie case
of disability discrimination. The AJ noted that the record contained no
evidence of a similarly situated, non-disabled individual who was treated
more favorably than complainant. The AJ further found that complainant
did not establish a prima facie case of reprisal discrimination.
In particular, the AJ noted that complainant failed to show that S1 was
aware that she had engaged in prior protected activity.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ erred when he did not find, among
other things, that she requested reasonable accommodations, that she
was terminated instead of being reasonably accommodated, and that she was
removed in reprisal for requesting reasonable accommodations. In response,
the agency restates the position it took in its FAD, and requests that
we affirm its final order.
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.
Thus, on appeal to this Commission, the burden is squarely on the party
challenging the AJ's decision to demonstrate that the AJ's decision is
erroneous. See EEO Management Directive-110, at 9-17 (Rev. 11/9/99).
In this case, this means that complainant has the burden of pointing
out to the Commission where and why the AJ's findings are erroneous as
a matter of law. Cf. id. (pointing out that �[t]he appeals statements
of the parties, both supporting and opposing the [AJ's] decision,
are vital in focusing the inquiry on appeal . . .�). In our view,
complainant has not done so.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health
for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999)
(analyzing a disparate treatment claim under the Rehabilitation Act);
and, Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission concludes
that the AJ's findings of fact are supported by substantial evidence in
the record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
The Commission agrees with the AJ's conclusion that that complainant
failed to establish by preponderant evidence that any of the agency's
actions were in reprisal or motivated by her disability.
The Commission also concludes that, under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), complainant's claim
of harassment must fail. See Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 6 (March 8, 1994). A prima facie case of harassment
is precluded based on our finding that complainant failed to establish
that any of the actions taken by the agency were in reprisal or motivated
by her disability. See Oakley v. United States Postal Service, EEOC
Appeal No. 01982923 (September 21, 2000).
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final order.
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
October 27, 2004
__________________
Date