01982097
08-17-2001
Linda M. Hagen, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Linda M. Hagen v. Department of the Interior
01982097
August 17, 2001
.
Linda M. Hagen,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01982097
Agency Nos. FWS94045, FWS95047
Hearing No. 350-96-8144x
DECISION
Linda M. Hagen (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her equal employment opportunity (EEO)
complaint of unlawful discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she was
discriminated against on the bases of sex (female), age (47 at relevant
time), and disability (major depression) and subjected to retaliation
for prior EEO activity (complaint filed under Rehabilitation Act) when:
(1) she was assigned to an office that made her feel isolated from
other employees and then, on July 8, 1994, moved to a smaller office;
(2) in June 1994, she was denied computer training;
from June 31, 1986 to present, she was placed in a position with no
career development;
on June 22, 1994, she was denied 40 hours requested annual leave,
and she received three derogatory memoranda regarding annual and sick
leave usage;
on June 22, 1994, she was required to perform the clerical duty of
creating personnel files for YCC students;
on August 1, 1994, after completing a Congressional inquiry, a management
official became angry at complainant and rejected her work; and
she was reassigned to the Santa Ana Refuge.
Complainant contended that, taken together, these actions constituted
harassment on one or more of the bases alleged. She also contended that
claim 7 was both a disparate treatment claim and a denial of reasonable
accommodation claim.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a Program Specialist in the Fish and
Wildlife Service Albuquerque, New Mexico Regional office, filed formal
EEO complaints with the agency on September 12, 1994 and March 31, 1995,
alleging that the agency had discriminated against her as referenced
above. The agency consolidated the complaints and at the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ first concluded that claim 6 failed to state a claim because it
was a remark unaccompanied by concrete action and hence did not render
complainant aggrieved. The AJ then found that complainant failed to
establish a prima facie case of discrimination in regard to claim 3
because she failed to show that she was placed in a position with no
career development. The AJ found credible the testimony of agency
witnesses that complainant's position had the same career development
potential as any other position. These witnesses testified that
complainant was able to apply for promotions or request an upgrade due
to accretion of duties, just like any other employee. The AJ concluded
that there was no evidence to suggest that complainant was prevented from
competing for higher-graded positions or improperly denied an accretion
of duties upgrade.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for all of the remaining challenged actions.
The AJ noted that complainant's supervisor moved complainant to a
different, less isolated, office after complainant told him that she felt
isolated in her current office The AJ found that the agency stated its
reasons for denying complainant computer training in June 1994, namely,
that the training she requested was on a program that was not installed on
the agency's computers and was not needed to perform complainant's job.
Similarly, the AJ noted that the agency explained that complainant's
request for 40 hours of annual leave on June 22, 1994 was denied because
there was a great deal of work to be done and complainant had been
given an assignment prior to her request that was not yet completed.
Agency officials testified that complainant was issued three memoranda
regarding her annual and sick leave usage because she was not following
the correct leave request policy and was having work performance problems.
The first memorandum placed complainant on sick leave restriction,
requiring complainant to justify her use of sick leave, because after
her request for 40 hours of annual leave was denied, she requested sick
leave for the same period. The agency felt that this suggested that
complainant was abusing sick leave. The second memorandum informed
complainant that she would be placed on Absent Without Leave status
if she did not submit medical justification for her sick leave usage.
This memorandum also notified complainant of various problems with
her work performance. The third memorandum was an admonishment, sent
because complainant did not complete assigned tasks, gave out erroneous
information and was taking too long to complete other assigned tasks.
Turning to claim 5, the AJ found that complainant failed to establish that
she was required to perform clerical duties or create personnel files
for YCC students as alleged. The AJ noted that the record establishes
that complainant's job includes the duty to oversee the YCC program
and that the task assigned to her was to ensure that all the required
paperwork for the YCC program was completed, so that the YCC students
could be paid. The AJ found that the agency articulated a legitimate
reason for this assignment when officials testified that this task was
part of complainant's job.
The AJ then noted that the agency articulated a legitimate
non-discriminatory reason for reassigning complainant to the Santa Ana
Refuge. Specifically, agency officials testified that complainant's
position, along with several others, was eliminated due to a nationwide
effort to streamline the agency's operations, as ordered by officials
at the agency's headquarters in Washington, D.C. The primary focus of
this effort was to move positions from central offices to the field.
Complainant was offered the portion of moving to two other positions,
but declined to choose one of the offered positions. Accordingly, the
agency assigned her to the position in Santa Ana because officials felt
that of the available positions, this was the most suited to complainant's
expressed interests and needs.
The AJ concluded that complainant failed to establish that the agency's
explanations were a pretext for discrimination or retaliation. The AJ
noted that complainant did not deny that her office was moved after
she complained about feeling isolated or that the computer training
she requested was for a program that was not installed on her computer
and was not given to anyone. The AJ further found that complainant
admitted to taking sick leave when her annual leave request was
denied and that complainant did not deny the factual statements in
the admonishment letters. The AJ went on to note that no one was given
greater opportunities for career advancement than complainant and that no
one with unmet deadlines was shown to have been granted annual leave in
June 1994. In sum, the AJ concluded that complainant's only evidence of
pretext was her own subjective belief that she was being singled out for
adverse treatment. The AJ found that these beliefs, without more, were
insufficient to show discrimination by a preponderance of the evidence.
The AJ also found that complainant did not establish that she was harassed
on the basis of the above claims, noting that the agency's actions were
motivated by valid business reasons, not discrimination or retaliation.
Turning to complainant's reasonable accommodation claim, the AJ
concluded that complainant was a qualified individual with a disability
and that once the agency was aware that complainant was requesting an
accommodation, it had a duty to accommodate her. The AJ found, however,
that the agency did accommodate complainant by reassigning her to a
location where mental health services were available. The AJ also noted
that although complainant asserted that the only possible accommodation
for her disability was to retain her position in Albuquerque, the agency
established that such an accommodation would be an undue hardship.
The AJ found that complainant's position was eliminated because it was no
longer needed and should be reassigned to another facility. To retain
complainant in the position would be to retain or create an unneeded
position. Complainant did not identify any vacant positions to which she
could be reassigned in Albuquerque, but merely asserted that the agency
could have created a position for her in Albuquerque if it wanted to.
The agency's final decision implemented the AJ's decision.
On appeal, complainant essentially restates arguments previously made
at the hearing. She notes that once she requested an accommodation,
the agency had the burden of helping her locate an available position
for reassignment. In response, the agency restates the position it
took in its FAD, noting that it did reassign complainant to a vacant
position which accommodated her needs. The agency requests that we
affirm its final decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the AJ's
decision properly summarized the relevant facts and, for the most part,
referenced the appropriate regulations, policies, and laws. Turning
first to complainant's claims of disparate treatment and harassment,
we note that complainant failed to present evidence that any of the
agency's actions were in retaliation for complainant's prior EEO activity
or were motivated by discriminatory animus toward complainant's sex,
age or disability. In so finding, we note the AJ's findings that the
agency articulated legitimate non-discriminatory reasons for its actions
is supported by substantial evidence. For example, complainant did
not dispute that her office was moved after she indicated that she felt
isolated, or that the computer training she requested was for a program
that she did not need to use. Nor did complainant name individuals who
were treated more favorably than she in this regard.
Similarly, even assuming that complainant's claim that a management
official rejected her work on a Congressional inquiry states a claim
as part of her harassment allegation, there is no evidence to suggest
that this incident was motivated by retaliation or discrimination.
Indeed, one of complainant's co-workers testified that employees' work on
Congressional inquiries was often returned for corrections. Furthermore,
complainant presented no evidence to indicate that she was placed in a
position with no career development. In regard to her claims that she was
denied annual leave and then received derogatory memoranda regarding her
use of annual and sick leave, there is no evidence to suggest that these
actions were motivated by discrimination or retaliation, as opposed to
the agency's legitimate concern that complainant was abusing the leave
policy by taking leave without advanced notice, without supervisory
approval, and during times when deadlines were approached.
Turning to complainant's claim that she was subjected to disparate
treatment when she was reassigned to the Santa Ana Refuge, the AJ's
finding that this reassignment was not motivated by a discriminatory
or retaliatory animus is supported by substantial evidence. Both
testimonial and documentary evidence establish that a mandate ordering
that agency's operations be streamlined, was issued by the agency's
headquarters in Washington, D.C. Part of this effort involved replacing
certain positions in regional offices with positions in the field.
As a result, complainant's position and the positions of others at the
Albuquerque Regional office, including that of a male employee within
complainant's division (CW1) and that of at least one female employee
in the office (CW2) were eliminated and the employees filling these
positions were offered a choice of other positions. CW1 and CW2 were
reassigned to field offices, Wichita Mountains Wildlife Refuge and to
the Sevilletta National Wildlife Refuge, respectively. Complainant,
after refusing to chose between options, was reassigned to the Santa Ana
Wildlife Refuge in Texas. Complainant offered no evidence to establish
that this reassignment was motivated by discrimination or retaliation,
as opposed to the agency's legitimate business reasons.
In regard to her claim of harassment, complainant may establish that
she was subjected to harassment if the discriminatory conduct is so
severe or pervasive that it created a hostile work environment on
the basis of her race, color, sex, religion, national origin, age,
or retaliation. See Harris v. Forklift Systems, 510 U.S. 17 (1993);
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). Here, complainant failed
to establish that any of the actions taken by the agency were motivated
by her protected classes.
Accordingly, we discern no basis to disturb the AJ's decision in regard
to her finding that complainant failed to establish she was subjected
to disparate treatment or harassment on the bases of her sex, age,
disability or prior EEO activity.
We turn, finally, to complainant's claim that the agency failed to provide
her with a reasonable accommodation when it denied her request to remain
at the Albuquerque Regional office and instead reassigned her to the
Santa Ana Wildlife Refuge. Even assuming complainant is a qualified
individual with a disability, we find that the agency fulfilled its
obligations under the Rehabilitation Act.<1> Commission guidance holds
that an individual is only entitled to those accommodations that are
necessitated by a disability. See Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act (Enforcement Guidance), March 1, 1999, at question 31. Here,
the medical documentation in the record establishes that complainant's
disability can be accommodated by ensuring that she is assigned to work
at a location where competent mental health services are available.
The AJ's determination that the Santa Ana location met this requirement
is supported by substantial evidence.
Complainant submitted a lengthy report from a Ph.D in Vocational
Rehabilitation and Women's Studies (VR) which relates complainant's
work history and the mental health problems she has had throughout
her adulthood. This report does not provide support for complainant's
claim that her disability necessitates that she remain at the Albuquerque
Regional office. Indeed, VR notes that events which occurred at the
Albuquerque Regional office increased complainant's depression and
her conclusion is that complainant should not continue working for the
Fish and Wildlife Service at any location. Accordingly, we find that
the agency did not violate the Rehabilitation Act when it reassigned
complainant to the Santa Ana Wildlife Refuge.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
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
August 17, 2001
Date
1The 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.