Lorraine McKinney, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 20, 2009
0120092349 (E.E.O.C. Oct. 20, 2009)

0120092349

10-20-2009

Lorraine McKinney, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Lorraine McKinney,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120092349

Agency No. 06-45997-02743

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's April 13, 2009 final decision concerning

her equal employment opportunity (EEO) complaint alleging 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., 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.

During the period at issue, complainant was employed as a Human Resources

Assistant, GS-0203-07, at the agency's Navy and Marine Appellate Leave

Activity (NAMALA) in Washington D.C.

On January 22, 2007, complainant filed the instant formal complaint.

Therein, complainant alleged that she was subjected to harassment and

a hostile work environment on the bases of sex (female), disability

(carpel tunnel in both hands; chronic cervical and lumbar disc syndrome;

breast cancer; and stress), age (over 40), and in reprisal for prior

protected activity when:

from June 2006 to August 8, 2007, she was subjected to approximately

ten instances of harassment, including a charge of Absent Without Leave.1

The record reflects that on November 15, 2005, complainant went on

extended leave from work to recuperate from an automobile accident.

In March 7, 2006, complainant had surgery for carpel tunnel and in May

2006, complainant had treatment for breast cancer. Beginning June 5,

2006, complainant was released by her doctor to work on a part-time basis.

Between June 5, 2006 and November 17, 2006, complainant's restrictions

included a part-time schedule, permanent limitations on the use of her

hands and a five-pound limit on any lifting. On December 11, 2006,

complainant was cleared to work day shifts of nine hours or more.

In early June 2007, complainant experienced breathing difficulties at

work; and she was out of the office under her doctor's care from August 1,

2007 to August 7, 2007.

At the conclusion of investigation, complainant was provided with a copy

of the report of the investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing but subsequently withdrew her request. Consequently,

the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).

In its April 13, 2009 final decision, the agency found that the evidence

in the record did not establish that complainant was subjected to

harassment based on sex, disability, age or retaliation.2 Specifically,

the agency found that the alleged harassment was insufficiently severe

or pervasive so as to create a hostile work environment.

Complainant's first-level supervisor (S1) denied subjecting complainant to

a hostile work environment. S1 stated that while complainant never told

her that she felt she was being subjected to a hostile work environment,

she "only told me that she did not like being asked for her doctors'

written evaluations." S1 stated that she informed complainant that

management needed "her doctors' written evaluations to know what work

and hours she could perform." S1 stated that in November 2005, prior to

her automobile accident, complainant was informed by management that she

"would be moving to back office and her duties would remain the same.

There was no change to her job description when she returned in 2006."

S1 stated that based on complainant's doctor note dated June 14, 2006,

complainant "was to avoid any activities that involved strenuous use of

the hands, repetitive movements of the hands, having her hands close

to machinery in hazardous situations pushing, pulling and lifting

heavy objects with the hands, [Complainant] could lift 5 lbs and

to avoid repetitive movements of the [h]ands and prolonged typing."

S1 stated that based on the doctor's orders, management was "limited

in what duties we could have [Complainant] perform and she was give[n]

light-duty purging, which is work within her position description."

With respect to complainant's allegation that she was forced out of

her job and not allowed to work the hours recommended by her doctor, S1

stated that complainant "was not being forced out of her job. When she

returned in 2006, [Complainant] was under the care of two doctors,

both of whom wrote to say that [Complainant] could only work 6 [hours]

per day with [one half hour] for lunch." S1 stated that on November 17,

2006, complainant gave her a letter from one of her doctors (D1) stating

"she and I discussed the duties which involve filing, typing, pulling,

carrying and lifting items, sometimes weighing as much as 5 pounds.

She and I have discussed the situation. She will try these duties on

a full time basis." S1 stated that in November 2006, complainant did

not give her a letter from her other doctor (D2) releasing her to work

full time. S1 stated that when complainant gave her D2's letter, she

informed complainant that she could not let her work full time because

she had not yet been released to work full time by D2, and "that she also

needed to be released from him to work the full hour times." S1 stated

that as soon as complainant gave her a letter from D2 releasing her to

work full time, complainant "resumed a normal, full-time work schedule."

Further, S1 stated that on August 8, 2007, she charged complainant

Absence Without Leave (AWOL) from July 27, 2007 to August 7, 2007

"because she did not show up for work or call us to let us know her

status, as advised, and her absence was not authorized or excused."

Specifically, S1 stated that the Captain, a named Sergeant and a named

Employee Relations representative left detailed messages on complainant's

home and cell phones but she did respond to their messages. S1 stated

"after I learned about the problem, I also called [Complainant] and

left her a message to report to work or to call in and let someone know

her status." S1 stated that complainant did not respond to her message.

S1 stated that complainant "was initially charged AWOL with those dates,

but upon further review by NAMALA and Employee Relations those dates were

changed to 'August 1, 2007-August 7, 2007.'" S1 stated that management

followed the proper agency procedures "which provides for a remedy ranging

from reprimand to removal for unexcused or unauthorized absence on one or

more scheduled days of work. [Complainant's] unexcused or unauthorized

absence was five days, and she was given the minimum possible discipline

(reprimand)." S1 stated that complainant's sex, disability, age and

prior protected activity had nothing to do with her AWOL charge.

Regarding complainant's allegation that she was directed to perform

duties which required bending, pushing, lifting, standing, which a named

co-worker (CW), also has a medical condition, but was not directed to do,

S1 stated "I have not directed either [Complainant] or [CW] to perform

duties outside physical limitations." S1 further stated that she gave

complainant and CW assignments "based on position descriptions and in

consideration of physical limitations."

Regarding complainant's allegation that S1 gave her an unsatisfactory

rating, then assigned her more physical effort and menial assignments

and told her that she would be moved to the back of the office working

in cold air, S1 stated that she evaluated complainant's and CW's work

solely on the quality of their performance. S1 stated that " I do not

know what [Complainant] means when she claims she was assigned 'more

physical effort and menial assignments.' I have given [Complainant] and

[CW] assignments based on position descriptions and in consideration

of physical limitations." S1 stated that the only time she recalled

telling complainant about moving to the back of the office "was when we

were in another building in 2005 and the Commander wanted his aide to

be located near him in the front of the office. [Complainant] did not

complain about cold air until the summer of 2007, after we had moved

to another building. In response to [Complainant's] complaints about

cold air (and in response to correspondence from her doctor in 2008),

we shut off a vent above her work area and took temperature readings to

determine the conditions and to make her more comfortable."

With respect to complainant's allegation that S1 stated in a letter

that complainant was a burden to the office, that she had a negative

impact on the efficiency of the office and that S1 issued her a letter

of reprimand and placed her on AWOL, S1 stated she assumed complainant

was making reference to an AWOL charge for August, 1, 2007-August 7,

2007, when complainant did not show up for work, did not call to let

management know her status and her absence was not authorized or excused.

S1 further stated "I never reprimanded or charged [Complainant] because of

any prior EEO activity in which she may have engaged or for any reason

other than the fact that her absence was not authorized or excused.

I am not sure to what 'letter to the office' [Complainant] refers in

the last bullet." S1 stated "at different times, I have written to

[Complainant] about her inattention to duty in producing accurate work

and about my concern over whether she can work a full-time schedule,

which can have a negative impact on the office."

Moreover, S1 stated that she and complainant have worked together for many

years and "about 10 years before I became her supervisor, [Complainant]

starting having issues with me. I do not know why. After I became her

supervisor, [Complainant] became more disrespectful and rude towards

me, particularly when I was trying to correct a problem with her work.

Just one example was when [Complainant] walked out of a session when I

was attempting to counsel her, leaving the issue unresolved."

Complainant's former second-level supervisor (S2) stated that during

the relevant time, she does not recall complainant telling her that

she felt she was subjected to a hostile work environment. S2 further

stated "although [Complainant] was not subjected to a hostile work

environment, she created difficult work conditions for other people.

Efforts to resolve to support and accommodate [Complainant] were often

met with [Complainant's] antagonism and mistrust." S2 stated that

during S1's attempts to counsel complainant, "I was asked to sit in a

couple times as support and to hopefully help [Complainant] feel at ease.

[Complainant] assumed an aggressive stance at these counseling sessions

and during efforts to train or to give her other guidance in her work.

[Complainant] would refuse to accept assignments from her supervisor,

and then accuse the supervisor of having the wrong tone when responding

to her refusal. [Complainant] was averse to receiving training, but

would argue that she was not trained when her work was critiqued."

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion

is unlawful, if it is sufficiently severe or pervasive. Wibstad

v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,

1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997). It is also well-settled that harassment based on an

individual's prior EEO activity is actionable. Roberts v. Department

of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).

A single incident or group of isolated incidents will generally not

be regarded as discriminatory harassment unless the conduct is severe.

Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether

the harassment is sufficiently severe to trigger a violation of Title

VII must be determined by looking at all of the circumstances, including

the frequency of the discriminatory conduct, its severity, whether it is

physically threatening or humiliating, or a mere offensive utterance, and

whether it unreasonably interferes with an employee's work performance.

Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement

Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002

(March 8, 1994) at 3, 6. The harassers' 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 the instant case, we find that the incidents complained of, even if

true, do not rise to the level of a hostile work environment.

Complainant, on appeal, has provided no persuasive arguments indicating

any improprieties in the agency's findings. Therefore, it is the decision

of the Equal Employment Opportunity Commission to AFFIRM the agency's

final decision because the preponderance of the record evidence does

not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

October 20, 2009

__________________

Date

1 The record reflects that some of the matters raised in this claim had

been amended to the original instant formal complaint.

2 For purposes of analysis only, and without so finding, the Commission

presumes that complainant is an individual with a disability within the

meaning of the Rehabilitation Act.

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0120092349

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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