01a00340
09-26-2000
Hazel M. Whitmire, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Hazel M. Whitmire v. Department of the Air Force
01A00340
September 26, 2000
Hazel M. Whitmire, )
Complainant, )
) Appeal No. 01A00340
v. ) Agency No. AR000990751
)
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (�FAD�)
concerning her complaint of unlawful employment discrimination on the
bases of reprisal (prior EEO activity), and disability (physical), in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq.<1> The Commission accepts complainant's appeal.
ISSUE PRESENTED
The issue presented herein is whether complainant demonstrated by a
preponderance of the evidence that the agency discriminated against her
on the bases of reprisal (prior EEO activity) and disability (physical)
when they issued her a temporary transfer assignment.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as an Aircraft Electrician, WG-2892-10, at Tinker Air Force
Base, Oklahoma. Complainant has held this position for approximately
ten years prior to the period in question.
In November 1994, complainant was diagnosed with progressive changes in
nerves, with early carpal tunnel syndrome on the right side and cervical
osteoarthritis. As a result of this diagnosis, the treating physician
restricted complainant to only lifting items weighing ten pounds or less,
intermittently, for a maximum of two hours a day. The Commission notes
that the record only contains one report with respect to this finding
and it indicated that the condition was temporary and complainant would
be reevaluated; however, there is no documentation in the record with
respect to any reevaluation.
In January 1998, complainant visited her physician and complained about
job related stress. In response to this ailment, the physician prescribed
complainant medication and restricted complainant's activities due to
possible side effects from the medication. Complainant was restricted
from working with power tools, at heights, and with any assignments that
may be hazardous to complainant or her co-workers. It appears from the
record that these restrictions were maintained through January 1999.
The record further reflects, that on May 14, 1998, complainant filed
an EEO complaint claiming that she was the victim of harassment.<2>
Thereafter, on May 22, 1998, complainant filed another EEO complaint
on the bases of race, sex and reprisal with respect to a performance
evaluation she was issued. According to the record, complainant's
second level supervisor was named as the responsible agency official
in the May 14, 1998 complaint. Furthermore, complainant's first level
supervisor admits knowledge of complainant's prior EEO activity in or
about April 1998.
In August 1998, complainant's second level supervisor sent an e-mail
requesting additional assistance for a project because he was backlogged
and an assistant would help with the work so that complainant would not
have an excuse to delay the project. Thereafter, on October 1, 1998,
complainant was issued a temporary transfer notice by her first and third
level supervisors. Complainant claims that this notice was delivered in
reprisal for filing prior EEO complaints and because of her disability
and related physical restrictions. Furthermore, complainant claims
that the manner in which the transfer was delivered created a hostile
intimidating work environment. According to the record, complainant
was approached in her work area and handed the transfer after several
of her co-workers were asked to leave the area.
On November 3, 1998, complainant initiated contact with an EEO Counselor.
During the counseling period, complainant stated that management created
a hostile work environment and discriminated against her when they
issued her the temporary transfer on October 1, 1998. On December 14,
1998, complainant filed a formal complaint of employment discrimination
claiming that she was the victim of unlawful employment discrimination on
the bases of reprisal (prior EEO activity) and disability (physical).
The complaint was comprised of the matters for which complainant
underwent EEO Counseling discussed above. As remedial relief, complainant
requested, inter alia, compensatory damages.
Complainant did not request a hearing and the agency issued a FAD on
August 23, 1999. The agency found no discrimination. Specifically,
the agency determined that even if complainant established both a prima
facie case of reprisal and disability discrimination with regard to the
transfer and the method of delivering the notice of transfer, the agency
articulated legitimate, nondiscriminatory reasons for its actions.
With respect to the transfer, the agency stated they transferred
complainant in an effort to resolve the hostile work environment and
stress she was suffering. Furthermore, with respect to the method of
delivering the transfer notice, the agency officials claimed they asked
complainant's co-workers to leave the area so they could have privacy
since no enclosed offices were available. The agency decision further
concluded that complainant failed to demonstrate that the articulated
reasons were pretextual. Furthermore, the agency determined that
the claim of harassment failed because the incidents alleged were not
sufficiently severe to create an abusive or hostile work environment.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII or
Rehabilitation Act case alleging disparate treatment discrimination is
a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-803 (1973); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981)(burdens of proof in disparate treatment claims brought
pursuant to Rehabilitation Act are modeled after those used in Title VII).
Complainant has the initial burden of establishing a prima facie case
of discrimination. McDonnell Douglas, 411 U.S. at 802. If complainant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Complainant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was not its true reason,
but was pretext for discrimination. Id. at 256.
I. Title VII Claims
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. Social Security Admin., EEOC
Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at
802). Specifically, in a reprisal claim, according with the burdens
set forth in McDonnell Douglas, and 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. Department of Veteran Affairs,
EEOC Request No. 05960473 (November 20, 1997), complainant may establish
a prima facie case of reprisal by showing that: (1) she engaged in a
protected activity; (2) the agency was aware of her protected activity;
(3) subsequently, she was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
action.
In this case, complainant satisfied the above four-prong test establishing
a prima facie case of reprisal discrimination with regard to the transfer
and the method of delivering the letter. First, complainant engaged in
protected activity when she filed EEO complaints on May 14, 1998 and
May 22, 1998. Second, the record indicates that the agency officials
were aware of complainant's prior EEO activity. Third, subsequent to
the agency being aware of complainant's protected activity, she was
issued a letter of transfer. Fourth, a nexus is apparent because the
agency action closely followed complainant's participation in a protected
activity by approximately four months. Accordingly, the Commission finds
that the complainant has established a prima facie case of reprisal
discrimination.
The agency proffers that they transferred complainant in a effort to
resolve any stress or harassment she was experiencing in her position.
The agency claims that prior to the transfer, she informed management
that she was experiencing harassment in the work place and it was causing
her stress. Therefore, the agency claims it transferred her to remove
her from any harassment or stressful conditions. The agency further
states that they asked complainant's co-workers to leave the area to
afford them more privacy since neither complainant nor her supervisor
had an enclosed office where they could discuss the matter.
After a thorough review of all the evidence of record, the Commission
finds that complainant failed to meet her burden of establishing,
by a preponderance of the evidence, that the agency's explanation,
for the method of delivering the letter, was a pretext masking
reprisal discrimination. The agency articulated that they asked
complainant's co-workers to leave the area so as to afford them privacy
in delivering the letter of transfer, since neither the supervisors,
nor complainant, had an enclosed office in which they could discuss the
matter if necessary. Other than bare assertions, the Commission finds
that complainant failed to submit any evidence rebutting the agency's
articulated reasons. Therefore, we find that complainant failed to
meet her burden of establishing, by a preponderance of the evidence,
that the agency's explanation for the method of delivering the letter
of transfer was a pretext for discrimination.
However, with respect to the transfer itself, we find that complainant
demonstrated that the proffered reason is unworthy of belief.
Specifically, the agency contends that they transferred complainant to
resolve any stress or harassment she was experiencing, but they fail
to address the fact that the transfer was only temporary and the agency
fails to show that they have taken affirmative measures to eradicate any
undue stress or harassment before her return. Moreover, the transfer
letter states that complainant will be returned to her current position
when her medical restrictions are lifted, rather than when any unfavorable
conditions have been eradicated. For these reasons, the Commission finds
that the agency's explanation lacks credibility. The Commission's policy
on retaliation prohibits any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter the charging party or
others from engaging in a protected activity. See EEOC Compliance Manual
Section 8, �Retaliation� No.915.003 at pp. 8-13 (May 20, 1998). We find
that complainant has proven that the agency's articulated reason for the
temporary transfer is pretextual and, therefore, that the transfer was
implemented in retaliation for complainant's prior protected EEO activity.
II. Disability Claim
In order to establish a prima facie case of disability discrimination,
complainant must show that she is an individual with a disability as
defined in 29 C.F.R. � 1630.2(g)<3>,that she is a "qualified" individual
with a disability as defined in 29 C.F.R. � 1630.2(m), and that the agency
took an adverse action against her. See Cansino v. Department of Army,
EEOC Request No. 05960674 (August 27, 1998).
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activity,
(2) has a record of such an impairment, or, (3) is regarded as having
such an impairment. 29 C.F.R. � 1630.2(g). Major life activities
include caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, working, thinking, concentrating,
and interacting with others. 29 C.F.R. � 1630.2(i).
See Fidurski v. Department of Health and Human Services, EEOC Request
05960027 (February 19, 1997).
We find insufficient evidence in the record to support the finding
that complainant is disabled under the Rehabilitation Act. The record
indicates that complainant has limitations induced by medication to
treat stress related problems. Specifically, complainant is restricted
from working in high places, with power tools, and from engaging in any
activity that would be hazardous.<4> However, there is no testimonial
or documentary evidence which describes how the limitations affect
complainant. Specifically, there is no indication that the inability to
be in high places and the utilization of power tools substantially limits
one or more of complainant's major life functions. Furthermore, with
respect to the major life activity of working, the term "substantially
limits" means significantly restricted in the ability to perform either a
class of jobs or a broad range of jobs in various classes as compared to
the average person having comparable training, skills, and abilities. 29
C.F.R. � 1630.2(j)(3)(i). Therefore, complainant's inability to perform
a single, particular job does not constitute a substantial limitation in
the major life activity of working. Id. Moreover, the record contains
no evidence to establish that the agency regarded the complainant as
disabled or that complainant had a record of a disability. Accordingly,
we find that complainant failed in her burden of showing that she is
covered under the Rehabilitation Act. Therefore, the Commission finds
that the agency did not discriminate against complainant on the basis
of disability when they transferred her.
III. Hostile Work Environment
In the present case, the formal complaint sets forth two incidents which
complainant claims to have caused a hostile work environment. First,
management evacuated her work area prior to delivering to her a letter
of transfer and second, management issued her a letter of transfer.
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable person in
the complainant's circumstances would have found the alleged behavior to
be hostile or abusive. Even if harassing conduct produces no tangible
effects, such as psychological injury, a complainant may assert a Title
VII cause of action if the discriminatory conduct was so severe or
pervasive that it created a work environment abusive to employees because
of their race, gender, religion, or national origin. Rideout v. Department
of the Army, EEOC Request No. 01933866 (November 22, 1995)( citing Harris
v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) req. for recons. den.
EEOC Request No. 05970995 (May 20, 1999). Also, the trier of fact must
consider all of the circumstances, including the following: 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,
510 U.S. at 23. It is well-settled that, unless the conduct is very
severe, a single incident or a group of isolated incidents will not
be regarded as creating a discriminatory work environment. See James
v. Department of Health and Human Services, EEOC Request No. 05940327
(September 20, 1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th
Cir. 1982). In the instant complaint, the claims set forth by complainant
are insufficiently severe to have created a hostile work environment.
Even though the Commission finds the agency retaliated against complainant
when they transferred her, the Commission does not find that the transfer
or the method employed to deliver the transfer, was severe enough to
create a hostile work environment. Therefore, the agency properly found
no discrimination with regard to complainant's claim of harassment.
CONCLUSION
For the reasons set forth herein, the Commission hereby REVERSES the
agency finding of no retaliation with regard to the transfer. We AFFIRM
the balance of the FAD.
ORDER (C1199)
The agency is ORDERED to take the following remedial action:
The agency shall take preventive measures to ensure that complainant
is not subjected to further reprisal discrimination.
To the extent that complainant has not been returned to her original
position, the agency is required to return complainant to the position
of Aircraft Electrician, WG-2892-10, in the Tanker Red Unit (LAPAAC),
Tanker Aircraft Production Section, Tanker Branch, Aircraft Production
Division, LA OC-ALC, Tinker Air Force Base, Oklahoma within twenty (20)
calendar days from the date this decision becomes final. If applicable,
the agency shall award complainant back pay, seniority and other
employee benefits from the date she was transferred.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501), no later than sixty (60) calendar
days after the date this decision becomes final. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages. The agency shall
afford complainant sixty (60) calendar days to submit additional
evidence in support of her claim for compensatory damages. Within sixty
(60) calendar days of its receipt of complainant's evidence, the agency
shall issue a final decision determining complainant's entitlement to
compensatory damages, together with appropriate appeal rights. A copy
of the final decision must be submitted to the Compliance Officer,
as referenced below.
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 (G1092)
The agency is ORDERED to post at its Tinker Air Force Base 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644,
37,659-60 (1999) (to be codified and hereinafter referred to as 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)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
September 26, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
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
violations of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. have 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 term's, conditions
or privileges of employment. This facility supports and will comply with
such Federal Law and will not take action against individuals because
they have exercised their rights under the law.
This facility has been found to have violated Title VII by transferring
an individual because of her prior EEO activity. This facility will
ensure that officials responsible for personnel decisions and terms
and conditions of employment are properly trained and in the future
and will abide by the requirements of all Federal Equal Employment
Opportunity Laws.
The agency will remedy the discrimination by returning complainant to the
same position she held prior to the transfer and to the extent necessary,
award complainant back pay, seniority and other employee benefits from
the date she was transferred. The facility will ensure that officials
responsible for personnel decisions and terms and conditions of employment
will abide by the requirements of all Federal equal employment opportunity
laws.
This 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. 29 C.F.R. Part 1614.
Date Posted: _________________
Posting Expires: _____________
29 C.F.R. Part 1614
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record does not indicate the specific incidents comprising the
harassment complaint filed on May 14, 1998. Furthermore, the record
indicates that the harassment complaint was closed on January 15, 1999,
and there appears to be no appeal filed with the Commission.
3 The Rehabilitation Act was amended in 1992, to apply the standards
in the Americans with Disabilities Act (ADA) to complaints of
discrimination by federal employees or applicants for employment.
The ADA regulations set out at 29 C.F.R. 1630 apply to complaints of
disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
4The Commission notes that complainant's medical restriction with regard
to her diagnosis of early carpal tunnel syndrome on the right side and
cervical osteoarthritis will not be considered because the medical report
shows that the restrictions were temporary and indicated that complainant
would be reevaluated.