01985192
08-23-2001
Laura Lopez, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Laura Lopez v. Department of the Navy
01985192
08-23-01
.
Laura Lopez,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01985192
Agency No. 95-60050-001
DECISION
On June 17, 1998, Laura Lopez (hereinafter referred to as complainant)
filed a timely appeal from the May 12, 1998, final decision of
the Department of the Navy (hereinafter referred to as the agency)
concerning a complaint of unlawful employment discrimination in violation
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405.
Complainant filed a formal complainant on March 23, 1995, alleging
discrimination based on disability (hip; asthma) when she was given a
10-day suspension in February 1995 for leaving a child unattended, and
a co-worker was given only a 5-day suspension for the same infraction.<1>
The agency explained that complainant was given a stronger penalty
than her co-worker, since the incident at issue was complainant's third
offense, while the co-worker had one prior offense. The agency asserted
that all disciplinary actions were taken according to the agency's rules
and denied that it discriminated or harassed complainant. Complainant
asserted that she was registered with the personnel office as a disabled
person, that the agency violated two settlement agreements, and that
agency managers harassed her because she was issued the suspension
at issue.
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). The agency acknowledged that
complainant is an individual with a disability.<2> We find, however,
that she has not demonstrated that her discipline was related to
her disabilities, and, thus, complainant has failed to established a
prima facie case of disability discrimination. See Heyman v. Queens
Village Committee for Mental Health for Jamaica Community Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). Further, even if complainant established
a prima facie case, applying the tripartite analysis enunciated in
McDonnell Douglas Corporation v. Green, supra, we find that the agency
articulated a legitimate, nondiscriminatory reason for the suspension,
and, in response, complainant did not demonstrate pretext.<3> See
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981);
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). With regard to
the suspension at issue, complainant does not deny that she violated
agency rules, does not dispute that the discipline was properly issued,
nor has she demonstrated that the agency's reason for her discipline
was not true or based on discriminatory animus.
The harassment of an employee based on his/her race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently
patterned or pervasive.<4> McKinney v. Dole, 765 F.2d 1129, 1138-1139
(D.C. Cir. 1985). To prevail on her claim of harassment and hostile
environment, complainant must show that she was subjected to harassment
because of a discriminatory factor, i.e., here, disability. See Harris v.
Forklift Systems, Inc., 510 U.S 17 (1993). Usually, unless the conduct
is 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); see Bloomer v. Department of
Transportation, EEOC Petition No. 03980137 (October 8, 1999). With regard
to complainant's claim, after review of the record before us, we find that
the evidence shows that the agency's action complained of by complainant
was not based on discriminatory factors and was not sufficiently severe
or pervasive to affect her work environment. See McKinney v. Dole,
765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).; Walker v. Ford Motor
Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Bloomer v. Department of
Transportation, EEOC Petition No. 03980137 (October 8, 1999). Here,
the issuance of the suspension, taken for nondiscriminatory, legitimate
reasons, was not sufficiently severe to constitute illegal harassment,
nor has complainant shown that it affected her work performance.
Finally, with regard to her claim of harassment by agency managers,
in general, a single incident, unless severe, will not be regarded
as discriminatory harassment. See Backo v. United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996). Complainant has
not demonstrated that the agency's action was not taken pursuant to its
legitimate exercise of its management functions or was a pretext for
unlawful discrimination.
Complainant referred to two EEO settlement agreements signed in 1993 and
1994, which concern her status as a qualified person with a disability,
her medical restrictions, and future job assignments. Neither of these
agreements prohibited the agency from imposing legitimate discipline,
such as that at issue herein. For the above reasons, we find that the
agency did not discriminate against complainant as alleged.
CONCLUSION
Accordingly, the agency's decision was proper and 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
____08-23-01______________
Date
1Complainant retired on disability in February 1996.
2The 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.
3Complainant can demonstrate pretext by persuading the fact finder, by
preponderant evidence, that the agency's stated reasons for its actions
were not the true reasons or that the agency acted on the basis of a
prohibited factor, i.e., disability.
4See, generally, Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).