0120112046
01-06-2012
Glenda Wearren, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.
Glenda Wearren,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120112046
Hearing No. 532-2009-00098X
Agency No. DFAS-00104-2008
DECISION
Complainant filed an appeal from the Agency’s January 31, 2011 Final
Order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Accounting Technician at the Agency’s Defense Finance Accounting
Service facility in Columbus, Ohio. On August 14, 2008, Complainant
filed an EEO complaint alleging that the Agency discriminated against
her on the basis of disability (skeleton degenerative, lumbar/sacral
arthritis and allergies) and reprisal when:
1. In April 2008, Complainant was denied a reasonable accommodation;
2. Complainant was subjected to non-sexual harassment including
the following incidents of harassment:
a. On June 23, 2008, a co-worker sprayed something in
the workspace;
b. On June 23, 2008, Complainant’s supervisor (S1) told Complainant
"go to the nurse because you are disturbing the workplace", or words to
that effect;
c. On June 23, 2008, S1 refused to talk to Complainant;
d. On June 23, 2008, S1 yelled at Complainant and told her “I am
sick of you and get out of my office”, or words to that effect; and
e. In April 2008, Complainant’s desk was moved.
Previously, in Wearren v. Department of Defense, EEOC Appeal
No. 0120083945 (December 31, 2008), the Commission reversed the Agency’s
dismissal of the complaint and ordered the Agency to investigate
Complainant’s claims. At the conclusion of the investigation, the
Agency provided Complainant with a copy of the report of investigation and
notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion
for a decision without a hearing. The AJ issued a decision without a
hearing on January 20, 2011.
In her decision, the AJ assumed, without so finding, that Complainant had
established a prima facie case of discrimination based on disability and
reprisal. AJ’s Decision Without a Hearing (AJ Decision), January 20,
2011, at 10; Record on Appeal (ROA) at 26. The AJ considered evidence
that Complainant requested an accommodation in the form of a partition
for her work area and a different seat assignment to alleviate symptoms
associated with her allergies. AJ Decision at 10. However, the AJ found
that Complainant did not show that the accommodation that she requested
would be effective. The AJ noted that the Agency provided Complainant
with equipment, permitted her to use a face mask, and allowed her to use
flexible leave and breaks as an accommodation. Id. The AJ found that
the Agency did not fail to provide Complainant with an accommodation. Id.
With respect to harassment, the AJ found that the incidents of harassment
described in Complainant’s complaint were not so severe or pervasive
as to rise to the level of harassment. Specifically, the AJ noted that
Complainant did not establish who sprayed perfume in her cubicle, did not
show that the workplace was permeated with offensive behavior, and did
not report her co-worker’s objectionable behavior to her supervisor.
The AJ found that considering the totality of circumstances, Complainant
did not present evidence of a hostile work environment. Id. at 11
The AJ concluded that Complainant did not show that she was subjected
to discrimination on the bases of disability or reprisal as alleged in
her complaint. 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. Agency’s Final Order
(Ag Order), January 31, 2011; Complainant’s Notice of Appeal, at 2.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29
C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion
for a decision without a hearing).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of
Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant
may establish a prima facie case of reprisal by showing that: (1)
he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) she is an "individual with a disability"; (2)
she is "qualified" for the position held or desired; (3) she was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
In the instant case, we assume, without so finding, that Complainant
is a qualified individual with a disability as alleged. We further
assume, as did the AJ, that Complainant established a prima facie case
of disability and reprisal discrimination. We find no dispute that
Complainant previously engaged in EEO activity and that her request for
a partition for her cubicle was denied.
We find, as did the AJ, no evidence presented by Complainant, that
the proposed accommodation Complainant requested (a partition for
Complainant’s cubicle) would have addressed Complainant’s medical
condition. We note no dispute in the record that the Agency responded to
Complainant’s requests for accommodation in April 2008, with a number
of measures intended to permit Complainant to perform the duties of
her position by addressing the symptoms associated with her documented
medical conditions. Neither party disputes that Complainant’s
work station was evaluated in April 2008, and that recommendations to
provide Complainant with a humidifier and air purifier were followed.
Complainant’s Memorandum In Opposition to Agency’s Motion for a
Decision Without a Hearing, September 29, 2009 at 4. We note that the
parties continued the interactive process in the following months during
which a number of alternative arrangements suggested by both parties were
considered. We find that the agency reasonably accommodated Complainant's
claimed disabilities. We do not find that Complainant was entitled to an
accommodation of her choice. Cramer v. Dep’t of Justice, EEOC Appeal
No. 0120061921 (December 12, 2008). Complainant has not shown that a
partition for her cubicle was necessary due to her claimed disabilities.
Furthermore, Complainant has not shown how any Agency action in the
complaint was motivated by disability or reprisal discrimination. We
concur with the AJ that assuming the incidents of harassment occurred
as alleged, they were not sufficiently severe or pervasive to constitute
a hostile working environment.
CONCLUSION
We AFFIRM the Agency’s Final Order finding no discrimination.
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
January 6, 2012
__________________
Date
2
0120112046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112046