0120081124
12-07-2009
Jose F. Torres, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jose F. Torres,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081124
Agency No. 2004-0565-2007100844
DECISION
On December 29, 2007, complainant filed an appeal from the agency's
November 30, 2007 final action concerning his 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 action.
At the time of events giving rise to this complaint, complainant worked
as a Prosthetic Support Clerk, GS-0303-4, in the Prosthetic & Sensory Aids
Service at the agency's work facility in Fayetteville, North Carolina.
On January 25, 2007, complainant filed an EEO complaint wherein he claimed
that he was subjected to discriminatory harassment on the bases of his
disability (carpal tunnel syndrome) and in reprisal for his prior EEO
activity under the Rehabilitation Act when:
1. On December 13, 2006, the Chief, Prosthetic & Sensory Aids Service,
telephoned complainant at his residence.
2. On December 20, 2006, the Chief, Prosthetic & Sensory Aids Service,
telephoned complainant at his residence and asked him when he would be
returning to work.
3. On January 12, 2007, complainant received a letter from the Chief,
Prosthetic & Sensory Aids Service, advising him that he was in an AWOL
status.
4. On January 23, 2007, complainant provided the Chief, Prosthetic &
Sensory Aids Service, medical documentation and she asked him, "Is this
a hostile environment paper that you are giving me?"
The record reveals that complainant was diagnosed with bilateral carpal
tunnel syndrome in 1993. Complainant retired on partial disability in
1999 and underwent surgery in 2000 and 2001. Complainant's condition
involves permanent restrictions on his ability to work, including
a restriction against repetitive use of his hands. Complainant has a
lifting restriction of five pounds. Complainant is not a candidate for
further surgery and his prognosis is poor.
Complainant began working at his current position in 2002 and was able to
perform his duties except for typing. However, complainant experienced
increased hand pain and numbness and was absent from work continually
beginning October 3, 2006. Complainant's absence was authorized until
December 2006 as he was on leave without pay.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final action pursuant to 29 C.F.R. �
1614.110(b).
The agency determined that complainant failed to prove that he
was subjected to discrimination as alleged. The agency stated that
complainant was not subjected to conduct that constituted harassment.
According to the agency, the telephone calls and the letter were within
the normal range of events which might reasonably be expected to occur
in a typical workplace. The agency concluded that given complainant's
prolonged absence from work, it was appropriate for management to
call and write him. The agency determined that complainant failed to
establish that he was subjected to conduct that was personally insulting
or denigrating in nature, he failed to show for the most part that it was
based on his disability or prior EEO activity, and he failed to prove
the conduct was sufficiently severe or pervasive to create a hostile
work environment. Thereafter, complainant filed the instant appeal.
In response, the agency asserts that the allegations in the complaint
in no way rise to the level of creating a hostile work environment.
The agency maintains that the Chief was simply performing her duties
within the scope of her position.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
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
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. Department of Veteran Affairs, EEOC Request No. 05960473
(November 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. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including 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 v. Forklift Systems, 510 U.S. 17
(1993).
To establish a claim of harassment, complainant must show that: (1) he
is a member of the statutorily protected class; (2) he was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). Further, the incidents must have been "sufficiently severe
and pervasive to alter the conditions of complainant's employment and
create an abusive working environment." Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,
Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor,
complainant must also show that there is a basis for imputing liability
to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).
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) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he 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.
Initially, we will assume, arguendo, that complainant established a prima
facie case under the alleged bases.1 We find that there is no evidence
to support complainant's contention that the alleged actions constituted
harassment. The relevant incidents include the Chief telephoning
complainant at his residence on two occasions during his absence from
work, the Chief sending complainant a letter advising him that he was in
an AWOL status, and the Chief commenting to complainant upon receiving
medical documentation from him "Is this a hostile environment paper that
you are giving me?"
We find that the incidents at issue are not sufficiently severe or
pervasive to constitute harassment. The telephone calls to complainant
were appropriate management actions on the part of the Chief given
complainant's prolonged absence from work and the uncertainty as to
when he would be returning to work. As for the letter to complainant
concerning him being in an AWOL status, the record reveals that
complainant needed to submit a written request with medical documentation
for additional leave without pay. Complainant was advised that failure
to submit such documentation by close of business January 12, 2007,
would result in him being carried in an AWOL status.2 We note that the
Human Resources Specialist stated that a letter such as this was routine
in these cases. She stated that she regularly advised all supervisors
to remind employees that they must request leave for any absence or they
will be considered in an AWOL status. We find that the letter at issue
was sent to complainant not as an act of discriminatory harassment but
rather as part of the routine manner in which the agency handled such
matters. As for the comment uttered by the Chief upon receiving medical
documentation from complainant, we find this remark by itself or in
combination with the other alleged incidents is insufficient to constitute
a hostile work environment. Accordingly, the agency's final action
finding no discrimination is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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, 2009
__________________
Date
1 We do not decide whether complainant was an individual with a
disability.
2 Complainant's time and attendance records indicate that he was never
placed in an AWOL status. Complainant acknowledged that this was the case.
Subsequent to submitting the required medical documentation, complainant
requested 288 hours of leave without pay retroactive to November 30,
2006. The request was approved.
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0120081124
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081124