0120063441
09-26-2007
Jeanne A. Donoghue, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Jeanne A. Donoghue,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200634411
Hearing No. 320-2004-00171X
Agency Nos. 200M-0339-2002105208;
200M-0339-2004100848
DECISION
On May 12, 2006, complainant filed an appeal from the agency's April 17,
2006, 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Senior Loan Service Representative, GS-11, Loan Service and Claims
Office, Regional Loan Center, Regional Office, in Lakewood, Colorado.
Complainant filed an EEO complaint alleging that she was discriminated
against and harassed on the bases of disability (Graves Disease and
Asthma), age (D.O.B. 12/01/48) and in reprisal for prior protected EEO
activity [arising under the Rehabilitation Act] when:
(1) On September 27, 2002, complainant's supervisor accused her of
inputting data into a computer log;
(2) On September 27, 2002, complainant's supervisor accused her of typing
an incorrect loan number in the computer;
(3) September 27, 2002, complainant's supervisor asked her to speak in
a nicer manner to a co-worker;
(4) On September 10, 2002, complainant's supervisor made a comment that
if complainant were to die, management could not recoup her advanced
sick leave (complainant was given 40 hours of advanced sick leave prior
to the supervisor making this comment);
(5) On May 10, 2002, complainant had to pick up the work of co-workers and
received 33 old files in the process. As complainant had to deny loans
from these files, complainant received three Congressional complaints
against her, which is a consideration in her performance assessment; and
(6) On November 14, 2003, complainant's supervisor failed to accommodate
her disability by taking away the advanced sick leave that she had
previously been approved for through the Leave Share Program, without
notification, and giving her AWOL when she had to be out of the office
to get a special test regarding her Graves Disease.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned to
the case granted the agency's February 17, 2006 Motion for a Decision
Without a Hearing, and issued a decision without a hearing on April
5, 2006.
In his decision, the AJ found that the alleged harassment was not
sufficiently severe or pervasive to be considered unlawful. Additionally,
he found that the record does not support that the harassment was
based on her membership in a protected group. As to the reasonable
accommodation claim, the AJ found that complainant failed to show that
she is disabled pursuant to the Rehabilitation Act, and therefore, the
disability claim failed. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that she was
subjected to discrimination as alleged.
On appeal, complainant contends that a hearing ought to have been
conducted. Complainant additionally states "HOSTILE WORK ENVIRONMENT AND
HARASSMENT WAS NEVER BASED ON AGE."2 Complainant further states that she
is disabled pursuant to the Rehabilitation Act, and submits documentary
evidence in support of her claim. In addition, complainant notes that her
"error rate" at work increased when she became ill, and she complains
that her supervisor told her that she would still be held to the same
performance standards as everyone else. Complainant states that she
experiences trembling in her legs and hands which renders her unable to
work as quickly as she used to. The Commission reminds complainant that
". . . the ADA does not require employers to excuse poor performance
or violation of conduct standards that are job-related and consistent
with business necessity." EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act (Guidance), Notice 915.002 at footnote 103 (October 17, 2002).
Although complainant asserts that she sent an email to the Chief of Human
Resources requesting the forms needed to be considered for accommodation,
and that the forms were never provided to her, there is no claim before
the Commission that complainant requested an accommodation which would
address the fact that she was working more slowly because of trembling.
As an initial matter we note that, as this is an appeal from a final
order issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b),
the agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). In this case, we assume arguendo that complainant
is disabled pursuant to the Rehabilitation Act.
Hostile Work Environment
In addition to the incidents of alleged harassment listed above,
complainant also describes being laughed at by co-workers when she was
given training (after 15 years on the job) on how to do her job correctly.
Complainant additionally asserts that her supervisor stated "My God girl
even your head is shaking." We have considered these incidents jointly,
in analyzing complainant's claim of hostile work environment harassment.
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2) the
harassment was based on her membership in a protected class. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
In order for harassment to be considered as conduct in violation of
the laws that the Commission enforces, it must be pervasive or severe
enough to significantly and adversely alter the conditions of the victim's
employment and create an abusive working environment. Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993). The conduct in question is evaluated
from the standpoint of a reasonable person, taking into account the
particular context in which it occurred. Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986). The Commission notes
that unless the conduct is very severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). In this
case, the harassment is not severe or pervasive enough to be unlawful.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. ��
1630.2(o) and (p). In this case, complainant alleged that she was not
accommodated when management took away the sick leave she was approved
for even though she needed the leave in order to see a doctor for a
special test concerning her Graves Disease. In response, her supervisor
asserted that complainant did not request accommodation, she requested
leave without pay. The supervisor stated that she was attempting to
assist complainant in getting her leave without pay request approved
by getting the requested documentation from complainant's doctor,
but complainant snatched the document from her and said she did not
have to provide anything other than what she had. The supervisor
additionally stated that since that event she has talked with Human
Resources who advised her that if complainant's doctor provides anything
that states that complainant is not able to report on a specific date,
to accept it and approve her request. The supervisor further stated
that when complainant has to leave work (and she has accrued leave),
all complainant is required to do is call in and she grants complainant
the leave. She also stated that when complainant does not have leave she
just has to provide a medical note from her doctor and she signs it and
gives it to the Loan Guarantee Officer (her boss) to approve the leave
without pay. The supervisor further stated that complainant has refused
to bring in any more doctor's notes since she requested the additional
documentation to approve her request for leave without pay.
Complainant disputes the agency's response, stating that management
was well aware that she was going through radiation testing, and
that complainant's shaking was evidence of this. She states that
her supervisor had already been provided with numerous doctor's notes
concerning her health problems prior to November 14, 2003. She further
notes on appeal "Although my health problems did not have a name yet,
the health problems were still there."
Initially, we note that under the ADA, an employee who needs leave
related to his/her disability is entitled to such leave if there is no
other effective accommodation and the granting of the leave will not cause
undue hardship. See EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act (Guidance),
Notice 915.002, at question 21 (October 17, 2002). Here, however, we
discern no violation of the Rehabilitation Act as to this particular
decision to deny leave. All parties agree that it was not until
November 10, 2003, that complainant was diagnosed with Graves Disease.
Therefore, even assuming management was aware before November 14, 2003
that complainant had physical problems, they cannot be charged with
the knowledge that complainant's leave request (unsupported by medical
documentation) on that day was a request for a reasonable accommodation
that needed to be granted in order to comply with the Rehabilitation Act.
In fact, complainant herself states that she has asthma since childhood,
and also that she has had pneumonia three times over a four year period.
Therefore, the record fails to indicate that it should have been obvious
to management that complainant needed the requested leave on November 14,
2003 for reasons relating to her Graves Disease. Even if complainant
verbally informed her supervisor that she needed the leave because
of a medical test, complainant's supervisor was entitled to request
reasonable medical documentation. See EEOC Enforcement Guidance on
Disability-Related Inquiries and Medical Examinations of Employees
Under the Americans with Disabilities Act (ADA), Notice 915.002 at
question 15 (July 26, 2000) ("An employer is entitled to know why an
employee is requesting sick leave. An employer, therefore, may ask an
employee to justify his/her use of sick leave by providing a doctor's
note or other explanation, as long as it has a policy or practice of
requiring all employees, with and without disabilities, to do so.").
Based on this record, the evidence does not support that the agency
acted in violation of the Rehabilitation Act concerning complainant's
leave request on November 14, 2003.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.3 See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, 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
September 26, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 Accordingly, the Commission will not consider the basis of age.
3 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120063441
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063441