0120121041
07-11-2012
Laurie J. Holly, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
Laurie J. Holly,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 0120121041
Agency No. HS-USCG-00231-2010 and HS-USCG-18196-2010
DECISION
On December 29, 2011, Complainant filed an appeal from the Agency's December 6, 2011, final decision concerning her equal employment opportunity (EEO) complaints 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
ISSUES PRESENTED
The issue presented herein is whether the Agency properly determined in its final decision that Complainant was not subjected to discrimination, harassment or denial of reasonable accommodation as she alleged in her two formal complaints.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Audit Coordinator at the Agency's U.S. Coast Guard facility in Washington, DC. Complainant indicated that she was diagnosed with high blood pressure in March 2009, by her physician. She was told to avoid any undue stress during work activities for they would have a detrimental effect on her cardiovascular health. She noted that she was able to perform her position; however, the workplace was getting more stressful due to the actions of her supervisor, the Deputy Office Chief (DOC). Complainant believed that the actions of the DOC made the stress levels in the workplace so overwhelming that she was unable to work. She noted that the "mistreatment" by the DOC caused her blood pressure to rise and created a hostile work environment.
On July 2, 2010, Complainant contacted the EEO Counselor regarding the alleged discrimination. When that matter could not be resolved, Complainant was provided with a Notice of Right to File her formal complaint. On October 12, 2010, Complainant filed her first EEO complaint alleging that the Agency discriminated against her on the bases of disability (high blood pressure) and age (52) when she was subjected a hostile work environment. Complainant indicated that the following events occurred in support of her claim of harassment:
1. From October 2009 through March 2010, the DOC bullied and intimidated Complainant.
2. On May 28, 2010, the Captain denied Complainant's request for reasonable accommodation.
3. On September 21, 2010, Management refused to engage in the interactive process.
4. On several occasions, the DOC denied Complainant's requests to work from home. This forced Complainant to use sick leave.
Subsequently, Complainant contacted the EEO Officer on August 20, 2010 regarding additional matters occurring in the workplace. When the matter could not be resolved informally, Complainant filed a second EEO Complaint on October 28, 2010, alleging that she was subjected to a hostile work environment based on her age, disability and prior EEO activity (her first EEO complaint). In support of her claim of harassment, Complainant indicted that the following events occurred:
5. In April 2010, the DOC forced Complainant to use leave when she was tardy. Complainant asserted that others were not required to do so.
6. On or about May 13, 2010, the DOC issued Complainant a performance evaluation at the "meets" level.
7. On August 18, 2010, the Supervisory Accountant (SA) deliberately delayed approving Complainant's request for leave which caused Complainant to incur a charge of Absence Without Leave (AWOL).
8. On August 23, 2010, the SA placed conditions on Complainant's leave.
9. On October 13, 2010, the SA hit Complainant on the forearm.
10. On October 15, 2010, the DOC denied Complainant's request to work compensatory time.
11. On several occasions, the DOC scrutinized Complainant's performance and work.
The Agency accepted each compliant for investigation. On January 3, 2011, the Agency notified Complainant that the two complaints would be consolidated into one complaint and investigated as a single complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency noted that Complainant failed to establish that she was an individual with a disability. Further, assuming for sake of argument that she was an individual with a disability, the Agency found that Complainant failed to show that she was subjected to disparate treatment. The Agency determined that it articulated legitimate, nondiscriminatory reasons which Complainant failed to establish was pretext for discrimination based on her presumed disability, age, or prior EEO activity. The Agency also held that Complainant failed to demonstrate that she was subjected to actions which, if taken as a whole, constituted a hostile work environment.
The Agency also addressed Complainant's claim of denial of reasonable accommodation. The Agency held that because Complainant failed to show that she was in fact disabled, she failed to show that she was entitled to a reasonable accommodation. In addition, the Agency noted that it provided Complainant with an accommodation for she was transferred to a different unit away from the direct supervision of the DOC. As such, the Agency held that it did not violate the Rehabilitation Act.
CONTENTIONS ON APPEAL
Complainant appealed the Agency's final decision. On appeal, Complainant asserted, through counsel, that she was in fact an individual with a disability and is entitled to the protections provided under the ADAAA. As such, Complainant's attorney claims that the Commission should find in Complainant's favor regarding her claims that the Agency violated the ADAAA. Further, Complainant argued that the Agency improperly concluded that the events raised in support of her claim of harassment did not occur. Complainant claimed that the SA assaulted her and the SA did not deny that the alleged "touch" took place. As such, the Attorney suggests that the physical touching is sufficiently severe or pervasive to create an abusive work environment. In sum, the Attorney asserts that evidence will be offered at trial which will reveal the inconsistencies and contradictions showing that the Agency's final decision is insufficient to warrant a finding of no discrimination.
The Agency provided the Commission with the complaint file without specific comment as to Complainant's appeal of its final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
The record indicates that Complainant sought two reasonable accommodations, namely a transfer outside of the chain of command from the DOC and to work from home. As to Complainant's request to be moved outside of the DOC's chain of command, Complainant indicated that due to her condition, she was advised to avoid undue stress during work activities. Complainant averred that she was able to perform her job; however the added stress made it difficult for her to work. She believed that the bullying and intimidation by the DOC cause so much stress to the point it became overwhelming. As such, she sought a transfer another supervisor. The Commission's guidance states that, in most circumstances, an employer does not need to change a person's supervisor as a form of reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Under Hardship Under the Americans with Disabilities Act, (Oct. 17, 2002), Question 33. As such, we find that the Agency was not obligated to provide Complainant with a new supervisor as a request for a reasonable accommodation. Furthermore, the record showed that Complainant was moved from under the direct supervision of the DOC in May 2010, limiting the interactions between Complainant and the DOC. As such, we find that the Agency has not violated the Rehabilitation Act.
Complainant also indicated that she was denied a request to work from home on several occasions. Complainant indicated that she wanted to work from home once in a while because with all the extra hours she put in to keep the audit on track, she needed to be able to work from home to avoid additional stress. Complainant also noted that she had requested to work from home in the event of bad weather such as ice and snow. Subsequently, Complainant asked to work from home two days a week to help her recuperate. We note that Complainant did not expand or explain why she needed to recuperate or from what she needed to recuperate. Further, we find that it is not clear from Complainant's affidavit that the request to work from home was based on her condition or other unrelated events such as bad weather or workload issues. Therefore, Complainant has not shown that the Agency was obligated to provide her with the requested accommodation. Further, at that time, the requested accommodation would not have allowed Complainant to perform the essential functions of her position. When Complainant requested telework, she was the Contracting Officer's Technical Representative (COTR). As the COTR, the Deputy Chief Financial Officer (Deputy CFO) indicated that Complainant could not work from home. Specifically, he noted that the COTR must manage the contractors and the Deputy CFO did not believe that she could do so from home. As such, the Deputy CFO denied the request for telework because her position did not lend itself to working from home. Furthermore, when Complainant asked to work from home, the DOC asked Complainant what assignments she could perform at home. She averred that Complainant could not give her an answer. Based on Complainant's work as the COTR, Complainant's request was denied.1
Disparate Treatment
Complainant also asserted that she was subjected to disparate treatment because of her disability, age and, in her second complaint, reprisal for her first formal complaint. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Again, for purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Complainant asserted that she treated differently in that: she was forced to take leave when she was tardy; she was issued a performance appraisal at the "meets" level; her leave for the week of August 23, 2010 was delayed in being approved; the SA placed conditions on Complainant's leave request for the same time; she was denied compensatory time; and the DOC scrutinized her performance and work time.
Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. As to the requirement that Complainant take leave, the record indicated that on three occasions on January 12, 2011, October 25, 2010 and October 27, 2010, Complainant was late reporting for work from 15 to 45 minutes due to traffic or weather. Management indicated that it was Agency policy for Complainant to use leave in such situations. As to the issue of Complainant's leave request for August 23, 2010, the record indicated that management needed to ensure that there was sufficient coverage that week of Complainant's absence. Therefore, Complainant's leave request for the week of August 23, 2010, was granted on August 18, 2010, after the SA determined that there was coverage during Complainant's absence.
Further, the leave was granted on the condition that the office had proper access to the audit coordination folders. The SA wanted to ensure that Complainant moved the shared folders to accessible drives while Complainant was out on leave. Complainant, at that time, was the only person with access to the properly executed audit requests which was needed by external auditors. The SA also stated that August was the busiest time of year for their office. When Complainant was on leave in July, the SA and Complainant's back up had problems gaining proper access to these items. Therefore, to avoid this problem again, the SA wanted to ensure that they had access to the files. The SA made the request several times from July 28, 2010 through August 19, 2010. Complainant indicated that on August 20, 2010, she requested for the three members of the office to have read/write access to the files. She did not ensure that proper access was granted prior to leaving. Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for placing conditions on Complainant's leave request for August 2010. The record showed that the SA wanted to ensure that there was coverage in the office during Complainant's leave and that individuals in the office could have access to files which would be needed during her absence.
Complainant also asserted that she was denied compensatory time per her request in violation of the Rehabilitation Act and the ADEA. The DOC averred that Complainant had a history of working compensatory time without prior authorization. At the time of the request, the SA indicated that Complainant was assigned to do a comparison of the Agency's FY2009 and FY2010 Management Representation letters and to highlight the differences between them. The SA noted that the task was a simple one since it comprised of side by side comparison of numerical paragraphs. The DOC indicated that Complainant did not request compensatory time prior to working it. As noted by the DOC, Complainant had a history of working without authorization despite being told over the last year to make her request for compensatory time in advance. Based on Complainant's failure to make her requests in advance of working compensatory time, the DOC denied Complainant's request.
Finally, Complainant contended that her performance appraisal was low and that the DOC scrutinized her work more closely than her coworkers. The record indicated that Complainant was rated as "meets." The rating broke down to a rating of "exceeds" for the element of customer service and "met" for the elements of communication, quality and timeliness and quantity. Complainant believed that she had been doing the work of four people and should have been rated higher. However the DOC did not agree with Complainant. She noted during the rating period about the problems she saw with Complainant's auditing and performance issues. The DOC averred that she communicated the issues and the need for Complainant to improve over the rating period and that Complainant's rating should not have come as a surprise. The DOC also noted that Complainant had received notice during her interim rating in March 2010. She noted that Complainant need to improve her communication on audit related issues and that there was a decrease in Complainant's performance. However, Complainant did not improve in those areas. Based on the record, the Commission finds that the Agency has provided legitimate, nondiscriminatory reasons for the appraisal.
Finding that the Agency has articulated legitimate, nondiscriminatory reasons, the Commission turns to Complainant to establish that the Agency's reasons were pretext for discrimination based on her presumed disability, age and/or prior protected activity. Upon review, we find that Complainant merely asserted without supporting evidence that the Agency's reasons were lies. Without specific evidence, we cannot find that Complainant has actually shown that the reasons were pretext. Accordingly, we conclude that Complainant has not established that she was subjected to disparate treatment.
Hostile Work Environment
Complainant also asserted that the events raised in her formal complaints constituted a hostile work environment. It is well-settled that harassment based on an individual's disability and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) she is a qualified individual with a disability covered under the Rehabilitation Act, over the age of 40, and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). 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).
In support of her claim of harassment, Complainant raised tangible and intangible employment actions. As noted above, we found that Complainant failed to show that the tangible employment actions were because of her presumed disability, age and/or protected EEO activity. Further, Complainant asserted that the DOC bullied her. Complainant's examples of bullying by the DOC consisted of the DOC asking about Complainant being late, providing information to the DOC routinely on her work progress, and meetings which the Complainant believed the DOC was criticizing her. Complainant further asserted that the SA touched her arm.2 Complainant also believed that the SA harassed her by asking for updates on her work. The DOC also averred that when she came on board, Complainant indicated that she was not used to being supervised and was uncomfortable with it.
Upon review, we find that Complainant provided no evidence to show that the alleged harassment occurred because of her protected bases beyond her bald assertions. Clearly Complainant and Management had problems; however, Complainant did not show that these problems occurred because of her protected bases. Finding no support for her claim of harassment, we conclude that Complainant has not demonstrated that she was subjected to a hostile work environment because of her disability, age, or protected EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
July 11, 2012
__________________
Date
1 The Commission notes that, subsequently, the Agency has instituted a telework program. By the time the DOC provided her affidavit for the case at hand, Complainant had been provided with a telework agreement and worked two days from home. The program establishes that other employees can access Complainant's files and there is full audit coverage on the days Complainant is out of the office. In addition, the Agency has a separate COTR on the Finance Center contact.
2 We note that the SA asserted that this was a fabricated claim on the part of Complainant. She indicated that she would never assault anyone.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120121041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121041