01961168
07-28-2000
Mary J. Adams, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Mary J. Adams v. Department of Veterans Affairs
01961168
July 28, 2000
Mary J. Adams, )
Complainant, )
)
v. ) Appeal No. 01961168
) Agency Nos. 94-0896
Hershel W. Gober, ) 95-0180
Acting Secretary, ) Hearing Nos. 340-94-3812X
Department of Veterans ) 340-95-3354X
Affairs, )
Agency. )
)
DECISION
INTRODUCTION
Mary J. Adams (complainant) timely initiated an appeal to the Equal
Employment Opportunity Commission (EEOC or Commission) from the final
decision of the Secretary, Department of Veterans Affairs (agency),
received on October 20, 1995. Complainant alleged that the agency
violated Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; and the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).
ISSUES PRESENTED
The issues presented are: (1) whether complainant was sexually harassed;
and (2) whether complainant was discriminated against based on physical
disability (chronic pain) and reprisal (prior EEO activity) when she
was denied an accommodation and subsequently terminated.
CONTENTIONS ON APPEAL
On appeal, complainant contends that her case was not adequately presented
at the EEOC hearing. The agency contends that a fair and proper hearing
was conducted by the EEOC Administrative Judge (AJ) and that complainant
was duly represented by legal counsel. It further contends that its final
decision should be affirmed and that complainant's brief contains no new
contentions and only represents her general version of the circumstances
of her claim.
BACKGROUND
Complainant filed formal complaints on February 10 and July 19,
1994. Following investigations of these complaints, the agency informed
complainant that she could request either an EEO administrative
hearing or a final agency decision (FAD) based on the existing record.
Complainant requested an EEO hearing, which was held on June 28, 1995.
In her RD, the AJ recommended a finding of no discrimination. Thereafter,
the agency issued a FAD, in which it adopted the AJ's RD. It is from
this decision that complainant now appeals.
At the time of the alleged discrimination, complainant was employed by
the agency as a Food Service Worker, WG-3, in the Dietetics Service of the
agency's Reno, Nevada facility (the facility). Complainant alleged that a
co-worker began harassing her in 1986 and that the harassment continued
until her retirement. She reported an on-the-job injury on January
30, 1991, as a result of pushing a piece of equipment in the kitchen.
Complainant resumed part-time light duty work on December 2, 1991.
On April 15, 1994, complainant submitted a doctor's slip dated in March
saying she could not perform any of her duties for more than 15 minutes.
When asked what she could do, complainant shrugged and went home.
She never returned to work. Complainant retired from her position on
July 15, 1994, following the agency's proposal to terminate her.
In her RD, the AJ found that complainant failed to establish a prima
facie case of sexual harassment. She found that complainant belonged
to a protected group and was subjected to verbal conduct which was
unsolicited and offensive. The AJ found, however, that complainant
could not establish that the complained of conduct was based upon sex.
The AJ noted that the alleged harasser had similar problems with both male
and female co-workers. The AJ also found that the offensive behavior did
not reach that level which a reasonable woman would consider sufficiently
severe or pervasive to alter the conditions of employment and create an
abusive working environment. The AJ noted that complainant's testimony
was so vague and evasive that the AJ could not really clearly pinpoint
the offensive behavior. Further, the AJ found complainant's reaction
to be extreme and that it seemed to be based more on her dislike of and
suspicion of the alleged harasser than any actual interaction. Assuming,
arguendo, that complainant established a prima facie case, the AJ found
that the agency took prompt remedial action. Specifically, the agency
conducted a thorough investigation, and complainant and the alleged
harasser were kept apart as much as possible, given the demands of the
job.
As for complainant's failure to accommodate claim, the AJ found that
complainant failed to establish that she was a qualified individual with
a disability.<2> She found that although complainant appeared to have
an impairment which substantially limited her major life activities,
she could not establish that any accommodation or restructuring
would enable her to perform her job. Specifically, the AJ noted that
complainant's position required constant twisting, bending, and reaching,
which complainant herself stated she could not perform. Further, the AJ
noted that the agency made an individualized inquiry into accommodating
complainant's disability when job restructuring was attempted. The agency
gathered substantial evidence from a qualified expert about the functions
of the job and the possibility of restructuring. As a result of this
inquiry, the AJ found that twisting, bending and reaching were essential
functions of the position, which the agency by law was not required
to eliminate.
Finally, the AJ found that the accommodations demanded by complainant,
the use of an electric delivery cart and the working of the first position
on the �tray line� would have continued to require her to perform duties
that were not within her medical restrictions and were not different
from the job restructuring already attempted.
Finally, the AJ addressed complainant's allegation that her removal
was based on reprisal. The AJ found that complainant established a
prima facie case of reprisal. She also concluded that agency officials
articulated a legitimate, nondiscriminatory reason for complainant's
termination. Specifically, complainant's condition was deteriorating
and agency staff was being cut, necessitating that jobs be rewritten to
include duties previously done by others. Complainant could not perform
the essential functions of her position or any other position in Dietetics
Service. Finally, the AJ found that complainant failed to prove that the
agency's articulated reason was pretext for prohibited discrimination.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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).
The Commission has reviewed the record, consisting of the investigative
report and exhibits, the hearing transcript, the hearing exhibits,
the RD, the FAD, and the parties' statements on appeal. The Commission
concludes that the AJ accurately set forth the facts giving rise to the
complaint and the law applicable to the case based on the evidence of
record. The Commission further concludes that the AJ correctly determined
that complainant had not established, by a preponderance of the evidence,
that the agency discriminated against her as alleged in her complaints.
Accordingly, the Commission herein adopts the AJ's recommended findings
of fact and conclusions of law.
Regarding complainant's contention on appeal, we note that complainant
does not offer any explanation as to how her case was not adequately
presented. Further, the record does not support her contention.
Accordingly, we find that complainant was not discriminated against as
alleged.
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision and find that complainant has failed
to prove, by a preponderance of the evidence, that she was discriminated
against as alleged.
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
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:
July 28, 2000
_____________ ________________________________
DATE Carlton M. Hadden, Acting Director,
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________________
Date
__________________________
Equal Employment Assistant
1On 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.
2The 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.