Matilda R. Wyatt, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01970911 (E.E.O.C. Feb. 1, 2000)

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.