01970911
02-01-2000
Matilda R. Wyatt, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Matilda R. Wyatt v. Department of Justice
01970911
February 1, 2000
Matilda R. Wyatt, )
Complainant, )
) Appeal No. 01970911
v. ) Agency No. 1-94-6367
)
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Commission from a final
decision of the agency concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. �2000e et seq.; the Age Discrimination in Employment Act of
1967, 29 U.S.C. �621 et seq.; and Section 501 of the Rehabilitation
Act of 1973, 29 U.S.C. �791.<1> The appeal is accepted in accordance
with EEOC Order No. 960, as amended. See 64 Fed. Reg. 37,644, 37,659
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a)).
ISSUE PRESENTED
Whether the agency discriminated against complainant on the bases of
race (Black), gender, physical disability (injury to right hand, wrist,
and forearm), and age (42) when:
the agency required her to use 48 hours of leave to cover absences in
September 1993, instead of placing her in a continuation-of-pay (COP)
status, pending resolution of her workers compensation claim;
the agency placed complainant in leave-without-pay (LWOP) status on
October 13, 1993; and
the agency issued complainant a letter of warning on October 19, 1993,
in which it accused her of unprofessional conduct in using profane
language on the job.
BACKGROUND
The agency employed complainant as a seasonal immigration officer at its
facility in Las Vegas, Nevada. On September 17, 1993, while attending
a training course, complainant sustained an injury to her right hand,
wrist, and forearm while firing a gun. As a result of this injury, she
was terminated from the course without prejudice, in order that she may
return to the training program after she recovered. On September 27,
1993, she underwent an examination by a private physician, who diagnosed
her condition as a contusion of her right hand. The physician cleared
complainant to return to work, recommended that she not use her right
hand, that she continue to rest and keep her right hand elevated, and
that she undertake physical therapy. Investigative Exhibit (IE) 18.
In October 1993, complainant filed a claim with the Office of Workers
Compensation Programs (OWCP) in October 1993, which was accepted on
December 30, 1993. In January 1994, complainant's restrictions were
lifted, and she was cleared to return to unrestricted duty. IE. 19.
Complainant filed a complaint of discrimination based on the three
incidents referenced above. The agency investigated her complaint and
issued a final decision of no discrimination, from which she now appeals.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Those circumstances will vary
depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 804 n. 14. 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is pretextual. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the Navy,
EEOC Request No. 05950351 (December 14, 1995).
Although this test developed in the context of Title VII, it also
applies to claims brought under the ADEA. Johnson v. United States
Postal Service, EEOC Request No. 05910560 (September 17, 1991);
La Montagne v. American Convenience Products Inc., 750 F.2d 1405,
1409-15 (7th Cir. 1984); Loeb v. Textron, Inc., 600 F.2d 1003, 1019
(1st Cir. 1979). It is equally applicable to disparate treatment claims
brought under the Rehabilitation Act where the agency does not ostensibly
rely upon complainant's disability as the reason for its actions. Hansen
v. Department of the Air Force, EEOC Appeal No. 01920621 (September 10,
1992); Prewitt v. United States Postal Service, 662 F.2d 292, 305 n. 19
(5th Cir. 1981).
To bring a claim of disability discrimination, however, complainant
must first establish that she has a disability within the meaning of
the Rehabilitation Act.<2> An individual with a disability is one who
has, has a record of, or is regarded as having a physical impairment
that substantially limits one or more of her major life activities. 29
C.F.R. � 1630.2(g). Temporary or transitory conditions are generally not
considered to be disabilities under the Rehabilitation Act. Appendix to
29 C.F.R. Part 1630 - Interpretive Guidance on Title I of the Americans
With Disabilities Act, Section 1630.2(j); Marshall v. Department of the
Navy, EEOC Request No 05950004 (June 2, 1995). The medical documentation
in the record establishes that complainant sustained an injury to her
right hand on September 17, 1993, which her physician characterized as a
"contusion of the right hand, with tendonitis." She was put on light
duty restrictions from October 13, 1993, until January 1994. In a letter
to the agency dated January 12, 1994, complainant's treating physician
cleared her to return to work. The physician stated:
At this point, I have no further treatment program for [complainant].
I do not recommend any surgical treatment and all conservative measures
have really been thoroughly pursued. My recommendation is that she be
active and press forward with functional activities despite lingering
symptoms. She reports to me that she does not feel that she is going to
be able to go back to the type of work that she has been involved in.
I suggested to her today that [this] is a personal decision, but from
a medical point of view, there is no indication to keep her restricted
from full activity. My recommendation is for her to proceed with full
activity unrestricted (emphasis added).
IE 19. Moreover, complainant herself admitted that she does not have
a disability. She stated the following in her affidavit:
In filing my EEO complaint, I listed [disability as a basis] because I
had injured my right hand. I have no permanent physical handicap that
I am aware of and it is my expectation that I will regain the use of my
right hand (emphasis added).
IE 6, p. 1. The medical evidence indicates that her injury did not
result in any permanent effects that substantially impaired any of
her major life activities. She is therefore not an individual with a
disability and not eligible for Rehabilitation Act protection. We now
address whether the agency violated Title VII or the ADEA in connection
with the three incidents listed above.
Use of Leave - September 21-29, 1993
Where denial of employment benefits or privileges is at issue, complainant
may establish a prima facie case by demonstrating that she was denied
those benefits under circumstances suggesting a discriminatory motivation
on the part of the official responsible for the adverse action. See Orr
v. Tennessee Valley Authority, EEOC Request No. 05930311 (March 11,
1994); Thompkins v. Morris Brown College, 752 F.2d 558, 562 n. 7 (11th
Cir. 1985). It is sufficient, although not necessary, for complainant
to show that a comparative individual that she alleges was treated
differently is outside of her protected group. O'Connor v. Consolidated
Coin Caters Corp., 507 U.S. 308, 312-13 (1996); Enforcement Guidance
on O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002,
n. 4 (September 18, 1996); Carson v. Bethlehem Steel Corp., 82 F.3d 157,
159 (7th Cir. 1996).
Complainant did not report to work between September 21 and September 29,
1993. IE 8, p. 2. On September 28, the agency's district office issued
her a memorandum telling her that she was not eligible for COP. IE 19.
She was told by her supervisor that she had to submit a leave slip for 48
hours of leave for the time that she missed work. Complainant stated that
when she was off from work, she assumed that she was on COP status, due
to her injury. She also stated that two white males who also sustained
work-related injuries were immediately placed on COP status and not
charged leave.
A personnel management specialist who handled complainant's claim for COP
testified that the claim was disputed because it was first thought that
complainant had an occupational injury, rather than a traumatic injury,
and that occupational injuries were not subject to COP regulations.
She also stated that complainant's claim for COP was processed once OWCP
determined that her injury was traumatic. IE 17. Complainant admitted
that on October 8, 1993, her supervisor agreed to restore all 48 hours of
leave and to change her status to COP until a decision on complainant's
situation could be made by OWCP. IE 6, pp. 2-3. Complainant's supervisor
testified that when complainant returned to work after being absent in
late September, she initially asked complainant to fill out leave slips,
which complainant did. The supervisor then testified that, on October 8,
she contacted the agency's district office and was told by the personnel
management specialist to change complainant's status to COP, pending
OWCP's final determination on the nature of complainant's injury.
IE 8, p. 2; IE 17. OWCP authorized the placement of complainant into
COP status on December 19, 1993. IE 19.
With respect to her leave allegation, we find that complainant has
failed to establish a prima facie case of discrimination, on any basis.
Since her leave was restored in October 1993, she has not suffered a
loss or harm in connection with any employment benefit or privilege.
As for the two white males who were placed into COP status after being
injured on the job, the record establishes that these employees suffered
injuries that were determined to be traumatic from the outset, and
consequently, no question arose as to their eligibility for COP. IE 15,
IE 21. Complainant has not presented any other evidence suggesting
a discriminatory motive on the supervisor's part. Hence, the facts
and circumstances of this allegation do not support the inference of
disparate treatment necessary to establish a prima facie case.
AWOL - October 12-15, 1993
Complainant failed to report for duty between October 12 and 15, 1993.
By memorandum dated October 18, 1993, the officer-in-charge (OIC)
of the district informed complainant that she would be placed on
absence-without-leave (AWOL) status during that time frame. The OIC
stated that complainant failed to document her absences or otherwise make
arrangements in advance for time off. IE 22. Where, as here, the agency
has established legitimate, nondiscriminatory reasons for its conduct,
the trier of fact may dispense with the prima facie inquiry and proceed
to the ultimate stage of the analysis, i.e., whether the complainant
has proven by preponderant evidence that the agency's explanation was
a pretext for actions motivated by prohibited discriminatory animus.
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). In this case, the agency stated that
complainant was placed on AWOL between September 12 and September 15,
1993, because she failed to document her absences or seek advanced
approval for those absences.
Employees on COP were required to document their absences and show that
they had been undergoing medical treatment while receiving COP benefits.
IE 20. The October 18 memorandum indicated that the agency contacted
complainant's treating physician to discuss complainant's ability
to work, and that the physician stated that complainant was able to
return to work and perform light duty as long as she did not use her
right hand. The physician also expressed concern that complainant did
not show up for a physical therapy appointment that had been scheduled
for October 5. IE 8, pp. 2-3; IE 19; IE 22. The personnel management
specialist testified that placing employees who failed to document
their absences on AWOL was the normal procedure to follow. IE 17,
p. 2. Complainant has not presented any evidence that other employees
who likewise failed to document their absences were not placed on AWOL
or otherwise treated differently than she. She has not presented any
documents or testimony that contradicts the testimony of the supervisor
and the personnel management specialist, or which undermines their
credibility as witnesses. We therefore find that complainant has not
shown that the agency discriminated against her when she was charged
with being AWOL between October 12 and 15, 1993.
Letter of Warning - October 19, 1993
On October 19, 1993, the OIC issued complainant a letter of warning
(LOW) for uttering profane language in the presence of employees of the
agency and other federal agencies. IE 23. Complainant contends that the
letter of warning constitutes discriminatory harassment. The 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 patterned or pervasive. Frye v. Department of Labor, EEOC
Request No. 05950152 (February 8, 1996); deLange v. Department of State,
EEOC Request No. 05940405 (March 3, 1995). Unless the conduct is severe,
however, a single incident or group of isolated incidents will not be
regarded as discriminatory harassment. Backo v. United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996). Several employees
testified that they heard complainant utter profanities in their presence.
IE 9; IE 10; IE 11; IE 14; IE 15; IE 25. We also note that the OIC
issued a similar letter to a white male detention officer who likewise
uttered obscenities in public. IE 16, p. 1. To the extent that the
letter of warning constitutes the only incident of alleged harassment,
we find that it was neither pervasive nor severe. To the contrary,
we find that the LOW was appropriate to the infraction, and therefore
did not rise to the level of discriminatory harassment.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
Feb. 01, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
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.