0120073529
09-28-2009
Margaret R. Harris, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Margaret R. Harris,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120073529
Agency No. 6X1S06017T
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 3, 2007, 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.
Complainant contacted an EEO counselor on February 7, 2006, and filed
a formal complainant on June 6, 2006. She alleged that the agency
discriminated against her on the bases of race (African American), color
(mocha), sex (female), disability (asthma), and age (54) as follows:
(a), based on race and color, she did not serve as time keeper
and was excluded from office social events;
(b), based on sex and age, when her supervisor (S1) made an
off-color remark in November 2005, calling her "little old
Margaret"; and
(c), based on disability, the agency harassed her and subjected
her to a hostile work environment when it failed to provide a
reasonable accommodation and placed her in a work environment that
her physician found unsuitable, in February 2006.
On June 6, 2006, complainant signed an agreement to have her complaint
processed under the agency's CORE (Compressed, Orderly, Rapid and
Equitable) Program. This program affords the complainant with a promptly
scheduled fact-finding conference held with all witnesses under oath
in lieu of the usual EEO investigation. Following the fact-finding
conference, complainant was advised of her right to request either a
hearing before an EEOC Administrative Judge (AJ) or an immediate final
agency decision. When complainant did not make an election within
the allotted time, the agency issued a "Recommended Final Decision"1
pursuant to the parameters of the CORE Program. The final decision
found no discrimination.
Complainant served as a Secretary (Office Automation) for the
Communications and Support Squadron Enterprise Operations Flight, Air
Force Space Command at Peterson Air Force Base, Colorado; the flight
commander was her immediate supervisor (S1). Complainant suffered from
asthma and, through February 2006, the agency provided a reasonable
accommodation for her condition, approved by her doctor, by moving her to
different locations on the base to keep her away from new construction,
renovations, interior alterations, and environments that exacerbated
her condition. Sometime during 2003-2004, complainant had an asthma
attack, and the agency moved her from her official duty station in
Building (B) 1, to B1844; in February 2006, she was relocated to B350
due to an expansion of the activity in B1844. By an Office of Workers'
Compensation Program (OWCP) form dated February 18, 2006, her doctor
(Dr. M) imposed more severe medical limitations, restricting complainant
from working in B1, B350, B1844, any building more than 10 years old,
or under renovation or construction; however, the agency's real estate
officials could not locate vacant space that met these requirements.
Complainant did not return to work and was placed in LWOP (leave without
pay) status as of February 27, 2006.2
The agency provided explanations for its actions, as follows: As to
(a), S1 explained that time-keeping duties required training on a new
computer-based system and, after complainant received training, she was
routinely assigned to perform these duties. S1 also stated that he was
not aware of nor did he observe that complainant was excluded from office
social activities, and she did not state any such concerns to him. As to
(b), S1 denied making the remark. Regarding (c), the agency denied that
it harassed complainant or created a hostile work environment when it
could not provide an accommodation for her worsened condition and her
doctor's new limitations in February 2006.
Standard of Review. The standard of review in rendering this appellate
decision is de novo, i.e., the Commission will examine the record and
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. See 29 C.F.R. � 1614.405(a); EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999).
Disparate Treatment Claims. The claims raised in (a) and (b) are
claims of disparate treatment. Such claims are examined under a
tripartite analysis whereby a complainant 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 Corp. v. Green, 411 U.S. 792, 802-804 (1973); 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 Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). If the agency is successful, the burden
reverts back to the complainant to demonstrate by a preponderance of the
evidence that the agency's reasons were a pretext for discrimination.
At all times, complainant retains the burden of persuasion, and it is
his/her obligation to show by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
For purposes of analysis, we will assume that complainant established a
prima facie case of discrimination. The burden of articulation shifts
to the agency to explain the reasons for its actions. The agency stated
that, as to (a), complainant required training to perform time-keeping
duties and was then assigned such duties, and S1 asserted that he did not
observe nor receive complaints from complainant that she was excluded
from office social activities. As to (b), S1 denied that he made such
a remark to complainant.3 The agency has met its burden and articulated
legitimate, nondiscriminatory reasons for its actions.
The burden of persuasion returns to the complainant to demonstrate by
preponderant evidence that the reasons given by the agency for its actions
were pretext, or a sham or disguise for discrimination. The complainant
must show that the agency's actions were more likely than not motivated
by discrimination, that is, that the actions were influenced by legally
impermissible criteria, i.e., for (a), race and color, and, for (b)
sex and age. Other than her assertion that she would be able to show
pretext, she has not done so, nor has complainant provided probative
evidence in support of her claims.
Harassment. It is well-settled that 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. Hurston v. United States Postal Service, Appeal No. 01986458
(January 19, 2001), (citing, Wibstad v. United States Postal Service,
EEOC Appeal No. 01972699 (August 14, 1998)). To establish a prima facie
case of hostile work environment harassment, a complainant must show that
(1) s/he belongs to a statutorily protected class; (2) s/he was subjected
to harassment in the form of unwelcome verbal or physical conduct because
of her/his protected class; (3) the harassment complained of was based
on her/his statutorily protected class; and (4) the harassment affected
a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment. See 29 C.F.R. �
1604.11; Davis v. Army, EEOC Appeal Nos. 01A24469, 01A20558 (November 14,
2003).
A complainant must show that the actions complained of were taken because
of or based on her/his protected status and be sufficiently patterned
or pervasive; usually, a single incident or a group of isolated,
discrete incidents will not be regarded as discriminatory harassment.
Frye v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);
Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
An abusive or hostile work environment exists "when the workplace is
permeated with discriminatory intimidation, ridicule and insult that is
sufficiently severe or pervasive to alter the condition of the victim's
employment." Harris V. Forklift Systems, Inc., 510 U.S. 17 (1993).
An alteration to an employee's working conditions exists if a tangible,
discrete employment action is taken, e.g., hiring, firing, transfer,
promotion, non-selection, or the agency's actions were sufficiently
severe and/or pervasive to create a hostile work environment.
Even assuming that complainant showed that she was an individual with a
disability and entitled to coverage under the Rehabilitation Act,4 and
that she was a qualified individual with a disability, she has not shown
that the agency placed her in B350 in order to harass her or subject her
to a hostile work environment or that she was assigned to B350 because
of her disability.
Failure to Accommodate. An agency is required to make reasonable
accommodation to the known physical or mental limitations of an
otherwise qualified individual with a disability, absent a showing of
undue hardship.5 29 � C.F.R. 1630.9(a). In this case, we find that
the agency did not fail to accommodate complainant. Rather, the record
reflects that the agency did accommodate complainant's limitations,
until such time as her limitations reached a point at which the agency
could no longer provide workspace that met complainant's increasingly
stringent limitations.
In her statement on appeal, complainant objected to the CORE
program, contending that it denied her due process and a satisfactory
investigation, and she demanded referral to an EEOC Administrative Judge
(AJ) and a hearing. Complainant also objected to the agency's finding
that she was not a qualified individual with a disability, because she
has asthma. In addition, she argued that she "can show pretext" based
on S1's remark.6
Complainant was afforded an opportunity to request a hearing at the time
she received the Report of Investigation; she did not do so within 30
days and lost the opportunity to do so. See 29 C.F.R. � 1614.108(f).
As noted, complainant voluntarily agreed to participate in the CORE
process on June 6, 2006. With regard to the investigation, the Commission
requires the agency to "develop an impartial and appropriate factual
record" upon which to make findings as to whether discrimination occurred.
See 29 C.F.R. � 1614.108(b). Complainant has not pointed to specific and
probative evidence or information missing from the investigation record.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred as alleged.
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
September 28, 2009
Date
1 It is not readily apparent why the final decision is describe as
"recommended," when in fact it is the agency's final decision.
2 Complainant's workers' compensation claim was accepted by OWCP, and
she received full pay.
3 We note that complainant did not note S1's alleged remark in the time
line submitted to the investigator.
4 For purposes of our analysis we, assume, without so finding, that
complainant is an individual with a disability.
5 See note 4, supra.
6 Complainant raises new issues on appeal, including a denial of leave,
a performance appraisal, and a knee condition. The Commission has held
that it is not appropriate for a complainant to raise new claims for the
first time on appeal. See Hubbard v. Department of Homeland Security,
EEOC Appeal No. 01A40449 (April 22, 2004). Should she wish to pursue
these claims, complainant is advised to contact an EEO counselor to
initiate the administrative process. For timeliness purposes, the date
of initial contact will be deemed to be the date on which complainant
filed the instant appeal.
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0120073529
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120073529