01a51320_r
04-21-2006
Karen W. Henderson, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Karen W. Henderson v. Department of Agriculture
01A51320
April 21, 2006
.
Karen W. Henderson,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A51320
Agency No. 020697
Hearing No. 100-2003-08558X
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 record reveals that prior to October 2001, complainant held the
position of Assistant Deputy Administrator (Senior Executive Level),
District Inspection Operations at the agency's Office of Field Operations
in its Food Safety and Inspection Service facility. In October
2001, complainant was detailed to serve as Special Assistant to the
Administrator for Homeland Security. On July 24, 2002, complainant filed
an EEO complaint alleging that the agency discriminated against her on the
bases of race (African-American) and disability (lymphangioleimyomatosis
[LAM] and post traumatic stress disorder [PTSD]) and subjected to
harassment when:
(1) Complainant was notified in January 2002, that the Homeland Security
position to which she was detailed would be downgraded to a Senior Level
(SL) position rather than remaining at the Senior Executive Level (SES);
Complainant was rushed to choose between the Homeland Security position
and the Assistant Deputy Administrator for Enforcement position while
she was recovering from major surgery in January 2002;
Complainant's work on the operating procedures for managing the Food
Biosecurity Action Team was criticized;
Complainant's request for reasonable accommodation to be assigned to
the Homeland Security position was delayed and then denied; and
Complainant was accused of not getting along with the staff.
Following 180 days from the filing of her complaint, complainant requested
a hearing before an EEOC Administrative Judge (AJ) on her complaint.
The AJ issued a decision without a hearing, finding no discrimination.
Initially, the AJ noted that complainant's reasonable accommodation claim
should be analyzed as part of her harassment claim and also as a separate
act of discrimination. With regard to the claim that complainant was told
that the Homeland Security position might be graded as an SL versus an
SES position, the AJ found that this issue does not constitute a tangible
action, and therefore, if considered a separate act of discrimination,
it would be dismissed under 29 C.F.R. � 1614.107(a)(5).
With regard to her reasonable accommodation claim, the AJ assumed that
complainant, as a result of her LAM, is a qualified individual with
a disability. With regard to her allegation that she was disabled due
to PTSD, the AJ found there was insufficient evidence to conclude that,
as of January and February 2002, that the PTSD substantially limited a
major life activity. Upon review of her reasonable accommodation claim,
the AJ found that complainant failed to put forth evidence indicating
that she was entitled to reasonable accommodation. Specifically, the AJ
noted that complainant did not set forth any specific evidence as to why
her medical condition necessitated remaining in the Homeland Security
position as opposed to being placed in the Enforcement position.
With regard to her harassment claim, the AJ noted that none of the
five examples of harassment cited by complainant involve derogatory
comments and/or slurs related to or based on her race or disability.
The AJ found that with the exception of the reasonable accommodation
claim, no connection was shown between complainant's protected bases and
the challenged actions. Further, the AJ found that the cited incidents
were not sufficiently severe or pervasive to have altered the conditions
of complainant's employment and created an abusive working environment.
The AJ concluded that complainant failed to proffer evidence indicating
that she was harassed based on her race or disability.
The agency issued its final order dated October 29, 2004, fully
implementing the AJ's decision.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful review of the record, including all statements submitted
on appeal, the Commission finds that grant of summary judgment
was appropriate, as no genuine dispute of material fact exists.
The Commission finds that the complaint, apart from the reasonable
accommodation claim, is a claim of harassment. The Commission finds
that the incidents of alleged harassment are not sufficiently severe or
pervasive so as to constitute a hostile work environment. We note that
complainant was not actually ever downgraded. Furthermore, complainant
has not shown that any of the alleged harassing incidents were motivated
by discrimination. With regard to her claim of denial of reasonable
accommodation, we find that complainant failed to show a nexus between
the claimed disabling conditions and the requested accommodation of
remaining in the Homeland Security position. Further, construing the
evidence to be most favorable to complainant, we note that complainant
failed to present evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's protected classes.<1>
The agency's decision finding no discrimination is AFFIRMED.
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
April 21, 2006
__________________
Date
1The Commission does not address in this
decision whether complainant is a qualified individual with a disability.