Margaret R. Harris, Complainant,v.Michael B. Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 28, 2009
0120073529 (E.E.O.C. Sep. 28, 2009)

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

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0120073529