Linda M. Luechtefeld Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMay 8, 2000
01972203 (E.E.O.C. May. 8, 2000)

01972203

05-08-2000

Linda M. Luechtefeld Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Linda M. Luechtefeld v. Department of Transportation

01972203

May 8, 2000

Linda M. Luechtefeld )

Complainant, )

)

v. ) Appeal No. 01972203

)

Rodney E. Slater, ) Agency No. 5-95-5421

Secretary, )

Department of Transportation, )

Agency. )

_____________________________________)

DECISION

Linda M. Luechtefeld (complainant) filed an appeal with this Commission

from a final decision of the Department of Transportation (agency)

concerning her complaint of unlawful employment discrimination, in

violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �

791 et seq.<1> Complainant's claim of discrimination is based upon

her disability (drug addiction)<2>, when her supervisor frequently

made negative remarks to her regarding her disability.<3> The appeal

is accepted in accordance with 64 Fed. Reg. 37,644, 37,659, 37,660

(1999)(to be codified and hereinafter referred to as EEOC Regulation 29

C.F.R. � 1614.402).

BACKGROUND

On June 5, 1995, complainant filed a formal EEO complaint claiming

discrimination as referenced

above. Complainant's complaint was accepted for processing and

investigated. Following the

completion of the investigation, complainant requested a final decision

by the agency. On January 2, 1997, the agency issued its final decision

finding no discrimination. It is this agency decision which complainant

now appeals.

The record reveals that complainant was employed by the agency as a

clerk in the Aviation Careers Division at the Mike Monroney Aeronautical

Center from 1991 until she resigned on April 20, 1995. At the time of her

resignation, complainant held the position of Staffing Clerk, GS-203-6.

The record further reveals that in 1990, prior to being hired by the

agency, complainant had become addicted to pain killers and was arrested

for obtaining Controlled Dangerous Substance narcotics. She stated

that she entered a drug rehabilitation program at that time. In May,

1993, complainant had a relapse and became active in her drug addiction

once again. Complainant was arrested when she attempted to illegally

obtain a Controlled Dangerous Substance narcotic. Complainant does not

believe that prior to this incident her supervisor (S2) or team leader

(S1) had any knowledge of her drug addiction. In May, 1993, complainant

advised S1 of her drug addiction.

After advising S1 of her drug addiction and arrest, she received a letter

of proposed removal which was held in abeyance so long as complainant

agreed to participate in an agency-approved Employee Assistance Program

(EAP), whereby she agreed to abide by the conditions of the 2-year

substance abuse treatment program and other conditions of rehabilitation.

Complainant alleged that following her return to work, her supervisor

made frequent negative remarks to her about her disability. She stated

that her supervisor told her that because of her past drug problem,

she should be grateful to her that she still had her job and that if

she were in private industry, they would have fired her on the spot.

Complainant also stated that she resigned in April, 1995 because she felt

that her supervisor would continue to hold her drug addition against her

and because she brought an issue of time card fraud in her department

to the attention of her supervisor's manager.

Complainant's supervisor denied ever saying anything negative about

complainant's disability. However, she did admit to telling complainant

at least once, but not frequently, that she was lucky to have a job.

Complainant's supervisor stated that this was stated in discussions

about complainant's attendance record and not with respect to her drug

addiction.

Shortly before complainant resigned she was issued a letter of warning

with respect to her excessive leave usage. In the eighteen months prior

to complainant's resignation, she used 90.50 hours of annual leave,

16.75 of compensatory time, 28.75 hours of leave without pay, 24 hours of

advanced sick leave, and 16 hours of time off awards. According to S1,

this leave record was having a negative impact on the office workload and

affected work operations. S1 stated and the record reflects that she had

issued similar letters of warning to employees outside complainant's

protected status.

ANALYSIS AND FINDINGS

The agency determined that while complainant was not substantially limited

in any major life function related to her drug addiction, she nevertheless

fell under the protection of the Rehabilitation Act since she had a

record of drug addiction and her supervisor was aware of this record.

The agency further found that complainant was qualified to perform the

essential functions of her job. We will assume, solely for the purpose

of our further analysis herein, that the agency's findings are correct.

The agency analyzed complainant's claims as a disparate treatment case

and found that assuming complainant established a prima facie case of

discrimination, the agency articulated a legitimate, non-discriminatory

basis for its employment action which the complainant failed to rebut or

show was based upon discriminatory animus. Specifically, the agency

noted that complainant's supervisor explained that her statements to

complainant that she was lucky to have a job were related to complainant's

leave usage and not her disability. The record further reveals that no

witness, through personal observation, could corroborate complainant's

claims. In addition, the record shows that complainant's leave record

was excessive. Accordingly, the agency found that complainant did not

meet her burden of proving, by a preponderance of the evidence, that

discrimination occurred.

While the agency analyzed complainant's claims as a disparate treatment

case, we find that this case is better analyzed as a harassment complaint.

However, after a careful review of the entire record, including arguments

and evidence not specifically addressed in this decision, the Commission

finds that complainant failed to meet her burden in proving that the

statements from her supervisor were sufficiently severe and pervasive so

as to unreasonable interfere with her work performance and/or create an

intimidating, hostile, or offensive work environment.<4> See Lulverne

v. Department of Health and Human Services, EEOC Appeal No. 01966875

(October 1, 1998), citing Walker v. Ford Motor Company, 684 F.2d 1355

(11th Cir. 1982); See also McCleod v. SSA, EEOC Appeal No. 01963810

(August 5, 1999).

In addition, we find no evidence in the record which supports a finding

of constructive discharge. The Commission has adopted a three-pronged

test for establishing a constructive discharge. An complainant must

show that: (1) a reasonable person in her position would have found the

working conditions intolerable; (2) conduct which constituted prohibited

discriminatory treatment created the intolerable working conditions; and

(3) complainant's involuntary resignation resulted from the intolerable

working conditions. See Taylor v. AAFES, EEOC Request No. 05900630 (July

20, 1990); See Youngblood v. USPS, EEOC Request No. 05970830 (June 17,

1999). Since the evidence does not support a finding of intolerable

working conditions, constructive discharge cannot be supported.

Since complainant presents no arguments on appeal, we discern no basis

to reverse the agency's finding of no discrimination. Accordingly,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 8, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to

all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999) where applicable,

in deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.

2 The record indicates that complainant is missing fingers on her left

hand and has a port wine stain on her face. However, complainant does

not allege these conditions to be bases for her discrimination complaint.

3 Complainant also raised reprisal discrimination in her formal complaint

when she was issued a letter of warning with respect to leave usage.

However, the record indicates that the agency previously dismissed this

portion of complainant's complainant because it found that she did not

participate in EEO protected activity. There is no indication that

complainant appealed this agency decision.

4 Accordingly, we find it unnecessary to address whether complainant

falls within the protection of the Rehabilitation Act.