Pamela D. Rios, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMay 15, 2009
0120071535 (E.E.O.C. May. 15, 2009)

0120071535

05-15-2009

Pamela D. Rios, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Pamela D. Rios,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal Nos. 0120071535, 01200900801

Agency Nos. HS-06-0043, CIS-06-005

DECISION

On January 30, 2007, complainant filed an appeal of the agency's December

23, 2006 decision, and on October 3, 2008 complainant filed an appeal of

the agency's August 19, 2008 decision concerning her equal employment

opportunity (EEO) complaints 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., and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

The appeals are accepted pursuant to 29 C.F.R. � 1614.405(a). For the

following reasons, the Commission AFFIRMS the agency's final decisions.

BACKGROUND

At the time of her complaints, complainant was employed as a District

Adjudications Officer (DAO), GS-1801-12, with the U.S. Citizenship and

Immigration Services (CIS), Washington District, Norfolk Sub-Office,

Norfolk, Virginia. The Supervisory DAO, GS-1801-13, was Complainant's

first-line supervisor (S1), and the Officer in Charge, GS-1801-14,

was Complainant's second-line supervisor (S2).

On April 14, 2005, complainant filed an EEO complaint (Complaint A)

alleging that she was discriminated against on the bases of race

(Black), color (dark), mental and physical disabilities (hypertension,

heart disease, migraines, back pain, stress, anxiety, knee injury

and depression), and in reprisal for prior EEO activity when: (A1)

during August and September 2004, she was not offered the opportunity

to work overtime; (A2) since April 2004, she has been harassed by S2

when employees were directed not to park in the lot behind the worksite

despite complainant's need to do so as a result of medical restrictions,

assigned her to work in a waiting room that had been temporarily converted

into an office, and closely monitored her work activities and attendance;

(A3) on November 23, 2004, her supervisor removed her collateral duty

of re-verification, which entailed reviewing the details of coworkers'

security checks and quality annotations; (A4) her request for 74 hours

of advanced sick leave, which she submitted to S1 on December 9, 2004,

was denied as a result of inaction by management; (A5) since December

2004, her supervisors have more closely scrutinized and rigorously

reviewed her work, as compared to her coworkers, ignored her medical

restrictions, and repeatedly provided her with verbal and written

admonishments regarding her performance; (A6) since January 2005, her

supervisors have subjected her to harassing conduct by communicating with

her in a demeaning manner, questioning her attitude, interrogating her

about her leave usage and the sufficiency of her medical documentation,

and engaging in intimidating behavior by meeting with her behind closed

doors and standing outside her office door; (A7) effective March 9, 2005,

as a purported accommodation to her physical needs, she was forced to

move from her office and was placed in a small, windowless room that had

formerly been a waiting room, even though this action did not result in

the intended decrease in the amount of walking she had to do and only

acted to segregate her from her colleagues; (A8) on April 29, 2005,

she became aware that another employee had been offered overtime work,

but she had been excluded from receiving similar work.

On June 21, 2006, complainant filed an EEO complaint (Complaint B)

alleging that she was discriminated against on the bases of race (Black),

color (dark), mental and physical disabilities (osteoarthritis, anxiety,

and depression), and in reprisal for prior EEO activity when: (B1) between

June and September 2005 her supervisors gave her excessive amounts of

work, scrutinized her files, stringently monitored her whereabouts,

and treated her in a demeaning manner; (B2) on May 20, 2005, management

designated a less-senior employee in charge of the office when all other

District Adjudication Officers (DAOs) and supervisors were out of the

building; (B3) effective September 1, 2005, an employee was promoted

to Temporary Supervisory District Adjudications Officer (TSDAO), while

she was not considered for the position; (B4) on January 12, 2004, she

received a letter that seemed to contradict a March 2003 conversation

during which she was told that she was not eligible to participate in the

Adjudications Promotional Assessment Process (APAP), which she believed

denied her promotional opportunities between March 2003 and January 2004;

(B5) on March 22, 2004, her supervisor verbally reprimanded her because

she had not turned around all other cases within six months, which was a

standard that her supervisor had not communicated to her; (B6) on March

25, 2004, she overheard her supervisor state on the telephone that she

wanted to re-open an application that complainant had adjudicated on

the grounds that complainant supposedly approved a false claim; (B7)

on March 25, 2004, a supervisor asked her what her collateral duties

were so that she might reassign those duties to other officers, which

would justify a lower rating on complainant's performance appraisal and

cause an adverse impact on her pay; (B8) on March 29, 2004, a supervisor

conducted an interview in the office next to her; (B9) on unspecified

dates, a supervisor talked about her with co-workers, traveled down the

hall stating that she would "be gone at the end of the month," referred

to her as "a bitch," stated that she "knew how to get her," assigned her

additional work in an arbitrary manner, stated that she would "fix" her

by giving her "every walk-in that came in," and attempted to illustrate

that she was not performing her job to the best of her ability.

The record establishes that in October 2003, complainant was diagnosed

with disarrangement of the knee. On February 4, 2004, complainant

underwent surgery on her right knee and remained on leave until March

22, 2004. The record supports the finding that upon complainant's return

to the office, S1 and S2 discovered some performance issues and attempted

to address them with complainant. The record indicates that complainant

felt harassed by S1 and S2 upon her return to the office.2

For example, complainant alleged that on March 25, 2004, S2 walked through

the office while loudly stating on the telephone that she needed to

re-open an application that complainant adjudicated because complainant

had approved a false claim. Also on March 25, 2004, an e-mail exchange

occurred among complainant, S2, and the District Director (S3) regarding

the backlog in complainant's cases and her collateral duties. As a

result, complainant's collateral duties were reassigned to other officers.

On March 29, 2004, S2 allegedly conducted an interview in the office next

door to complainant's office in order to keep an eye on complainant and

to ensure that none of her co-workers provided her with assistance.

On April 7, 2004, S2 sent an e-mail to all employees stating that only

government-owned vehicles were permitted to be parked in the caged

lot at the rear of the building, unless an employee was working nights

or weekends. On April 2, 2004, after receiving physical restrictions

from complainant's orthopedist (P1), S2 provided complainant the use of

a converted office space (converted office) near the waiting room as

an office to conduct interviews. This office was located in the main

hallway and was approximately 25 feet from the room where applicants

waited to be called for interviews, which was one of complainant's duties.

The converted office was also closer to the ladies room, break room, and

building exit. Complainant's regular office was approximately 200 feet

from the waiting room. Some time in March 2005, management permanently

reassigned complainant to this converted office.

On May 16, 2004, S2 sent an e-mail to all employees explaining that there

would be no overtime until further notice because of budget constraints.

On August 6, 2004, a coworker (CW1) (White, no disability, prior EEO

activity) received an e-mail from S2 offering him overtime.

On September 23, 2004, complainant submitted a doctor's note from her

doctor (P1) indicating that her orthopedist restricted her to "limited

walking." On that date, complainant used the converted office to conduct

her interviews.

On October 6, 2004, complainant was placed on Leave without Pay (LWOP)

when she took time off for which she erroneously believed S2 had signed

her leave request. On October 5, 2004, complainant placed a note from her

psychologist (P2) under S2's door. The note indicated that complainant

received treatment for stress, tension, anxiety, and depression. The

following day, S2 asked complainant what accommodations she required,

but complainant never replied. On or about November 11, 2004, complainant

submitted a note from P1 restricting her to "light duty." On November 12,

2004, S1 asked complainant what management could do to accommodate her.

Complainant responded in the negative.

On November 15, 2004, S1 returned a case to complainant where the

applicant had not been cleared on the necessary security checks.

On November 23, 2004, S1 removed complainant's collateral duty of

re-verifications after returning two cases with expired security checks

and one case lacking required documentation of an arrest. Complainant

later visited the emergency room, apparently related to feeling harassed.

On December 8, 2004, complainant received her Performance Work Plan (PWP),

which had been placed on her desk with a note. Complainant submitted

a note from P1 indicating that she needed to be off work until December

22, 2004. On December 9, 2004, complainant submitted a request for 74

hours of advanced sick leave and a request for LWOP in the alternative.

S2 approved the request for LWOP.

On December 29, 2004, complainant submitted a note from P1 stating that

complainant was restricted to "limited walking." On January 5, 2005,

S1 informed complainant that all military cases should be brought to

S1 for re-verification rather than to the clerk, as complainant had

previously done. Complainant then complained of heart palpitations and

requested leave. S1 instructed complainant to wait in S1's office while

she retrieved S2. Complainant refused S1's offer to call an ambulance

and went to the hospital with an agency employee. Complainant's leave

was approved on the same day. Complainant later characterized S1's

actions as a verbal assault and an attempt to kill her by keeping her

in S1's office.

In January 2005, S1 stopped by complainant's desk and told her that

she was sending complainant an e-mail. When complainant failed to

acknowledge S1, S1 asked, "Do you hear me?" Complainant then e-mailed

S2 to request leave, indicating that S1 spoke to her "like a child."

In an e-mail dated January 31, 2005, after receiving a doctor's note,

S1 again asked complainant what accommodations management could provide

for her and whether complainant wished to use the converted office by

the waiting room. Complainant read S1's e-mail on January 31, 2005, but

did not respond. Also on January 31, 2005, complainant complained to S2

that S1 made patronizing comments to her. Complainant became upset and

left work early. S1 and S2 counseled complainant on or about February

3, 2005. Complainant said that nothing could change her perception that

S1 was trying to kill her. Complainant became upset at the meeting with

S1 and S2 and left work early.

Between February 2005 and July 2005, three of complainant's coworkers,

CW2 (White, no known disability, no prior EEO activity), CW3 (Black,

no known disability, no prior EEO activity), and CW4 (White, no known

disability, no prior EEO activity), received overtime assignments while

complainant did not.

In an e-mail dated March 2, 2005, S2 informed complainant that she was

being permanently moved to the converted office space by the waiting room

to satisfy complainant's "limited walking" restrictions. On March 3,

2005, complainant indicated that she would move, but asked for permission

to wait until Monday when she would get some help. On the same day,

complainant became upset following a discussion with management and

requested leave. Management approved complainant's leave and while

complainant was exiting the building she heard S1 say "This is a crock

of shit." On March 9, 2005, S1, S2, and two male coworkers helped

complainant move her filing cabinets, personal refrigerator, files,

and other office materials to the converted office space.

On April 19, 2005, complainant received a performance review with

an overall rating of "Excellent." S1 noted on the evaluation that

complainant "had been unable to accept professional criticism from either

her first or second-line supervisor." She also noted that complainant

had "abruptly left the office, leaving cases for other officer[s]

to complete." On September 2, 2005, complainant retired from CIS.

Complainant was provided with a copy of each completed report of

investigation and notices of her right to request a hearing before an EEOC

Administrative Judge (AJ). In accordance with complainant's request,

the agency issued final decisions pursuant to 29 C.F.R. � 1614.110(b).

In each decision the agency concluded that complainant failed to prove

that she was subjected to discrimination as alleged.

ANALYSIS AND FINDINGS

As both appeals herein are from decisions issued without a hearing,

pursuant to 29 C.F.R. � 1614.110(b), the agency's decisions are

subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).

See EEOC Management Directive 110, Chapter 9, � VI.A. (November 9,

1999) (explaining that the de novo standard of review "requires that

the Commission examine the record without regard to the factual and

legal determinations of the previous decision maker," and that EEOC

"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").

Disability Claim

As an initial matter, in order to prove a violation of the Rehabilitation

Act, complainant must establish that she is a "qualified individual

with a disability" within the meaning of the Rehabilitation Act.

An "individual with a disability" is one who: (1) has a physical or mental

impairment that substantially limits one or more major life activities;

(2) has a record of such impairment; or (3) is regarded as having such

impairment. 29 C.F.R. � 1630.2(g). Major life activities include,

but are not limited to, caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working. 29

C.F.R. � 1630.2(i). A "qualified" individual with a disability is one

who satisfies the requirements for the employment position she holds or

desires and can perform the essential functions of that position with

or without reasonable accommodation. 29 C.F.R. � 1630.2(m).

A Federal agency must "make reasonable accommodation for the known

physical or mental limitations" of a qualified employee unless the agency

can demonstrate that the accommodation would impose an undue hardship

on the operation of its program. 29 C.F.R. � 1630.9(a). Reasonable

accommodation includes, inter alia "acquisition or modification of

equipment." 29 C.F.R. � 1613.704(b); See also, Lowery v. United States

Postal Service, EEOC Appeal No. 01961852 (October 31, 1997).

We find that complainant has failed to present sufficient evidence in

support of a reasonable accommodation claim. Assuming for purposes

of this decision that complainant is an individual with a disability

within the meaning of the Rehabilitation Act, the record nevertheless

shows that complainant did not request a reasonable accommodation.

In addition, to the extent that complainant may be construed to have

requested an accommodation, she failed to provide the agency with

sufficient medical documentation in response to S1 and S2's requests

for additional information. Moreover, the record shows that management

offered complainant an office that reduced the amount of walking that

complainant was required to perform each day. The evidence supports the

finding that the converted office was closer to the waiting room, women's

restroom, mailroom, and the exit, so as to comply with her physician's

"limited walking" restriction. The preponderance of the record does not

support complainant's assertion that use of the converted office made

walking more difficult or otherwise caused a greater physical burden on

complainant.

Disparate Treatment and Harassment Claims

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in a Title VII or

Rehabilitation case alleging discrimination is a three-step process.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see

Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,

425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)

(applying McDonnell Douglas to retaliation cases). First, complainant

must 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, 411 U.S. at 802. Next,

the agency must articulate a legitimate, nondiscriminatory reason(s)

for its actions. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). If the agency is successful, then the complainant

must prove, by a preponderance of the evidence, that the legitimate

reason(s) proffered by the agency was a pretext for discrimination.

Id. at 256.

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case of

reprisal by showing that: (1) he or she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

he or she was subjected to adverse treatment by the agency; and (4) a

nexus exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

To establish a claim of harassment based on race, color, disability,

or reprisal, complainant must show that: (1) she is a member of the

statutorily protected class; (2) she was subjected to harassment in the

form of unwelcome verbal or physical conduct involving the protected

class; (3) the harassment complained of was based on the 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. Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The

harasser's conduct should be evaluated from the objective viewpoint of a

reasonable person in the victim's circumstances. Enforcement Guidance on

Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

Further, the incidents must have been "sufficiently severe and pervasive

to alter the conditions of complainant's employment and create an abusive

working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75

(1998). In the case of harassment by a supervisor, complainant must

also show that there is a basis for imputing liability to the employer.

See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Harassment Claim

The record shows that complainant felt harassed by S1 and S2 following

her return to the office from extended leave in March 2004. However,

the record fails to support the majority of complainant's assertions.

The preponderance of the evidence does not establish a sufficiently severe

and pervasive hostile work environment so as to alter the conditions of

complainant's employment and create an abusive working environment.

Moreover, the evidence in the record does not support a finding that any

hostile activity was motivated by discriminatory or retaliatory animus.

Specifically, the record shows that complainant and S2 had prior disputes

or personality conflicts stemming from the fact that S2 was chosen over

complainant for the position of Officer in Charge, GS-1801-14. Moreover,

the record is devoid of evidence in support of a finding that management

was motivated by discriminatory or retaliatory motives.

With respect to complainant's claims of discrimination on the bases of her

race and color, the record shows that various agency employees provided

statements indicating that they hold the opinion that S2 treated Black

employees differently from White employees. However, the opinions held

by various witnesses are not supported by documentary or other reliable

evidence, such as first-hand knowledge. Moreover, the record indicates

that eight out of sixteen employees were Black, yet complainant argues,

for the most part, that she was singled out by her supervisors rather

than arguing that she and others in her race group were treated in a

similar fashion. Moreover, the record is devoid of documentary evidence

in support of any hostile treatment toward one group of employees on

the basis of race or color. Upon review of the record, we find that the

preponderance of the evidence does not support the conclusion that any

responsible management official acted on the basis of race or color of

any employee. Accordingly, we find that complainant failed to establish

the existence of a hostile work environment on any prohibited basis.

Disparate Treatment Claims

With respect to the claims related to overtime, S2 explained that before

the end of Fiscal Year 2004, the agency allotted overtime monies for

backlog reduction. S2 stated that the overtime was needed to process

denials of citizenship status adjustment applications. S2 explained

that she chose two employees (CW1) (White, prior EEO activity) and

(CW3) (Black, no prior EEO activity) for this overtime assignment

because they were up-to-date with their caseloads and had consistently

submitted denials for adjudication cases on time. S2 stated that in

a majority of the cases, complainant was not current on her work, as

evidenced by a denial she failed to issue after 120 days had elapsed.

S2 further explained that she discovered cases that were several years

old in complainant's office.

With respect to Fiscal Year 2005 overtime allotments, S2 noted that

when overtime was available at the beginning of the 2005 fiscal year,

complainant did not volunteer, and when S2 brought up the subject of

overtime monies in September 2004, complainant exhibited no interest.

S2 also stated that in April 2005, headquarters issued a mandate to

resolve a mismatch report, and she offered that overtime assignment

to three Black employees, two of whom declined the assignment. S2 also

explained that overtime was also offered to CW1 and another employee (CW4)

(White, no prior EEO activity) to resolve a backlog of adoption cases.

S2 added that complainant was not offered either of these assignments

because she did not have the necessary access to resolve the mismatch

issues nor did she normally adjudicate orphan petitions.

In rebuttal, complainant contended that the backlogged files in her

office were not her responsibility, but were left there as a result of

other employees' reassignments. However, the testimony of complainant's

co-workers and former supervisors did not corroborate her statement.

Complainant further alleged that S2 assigned her some backlog cases left

by a retired DAO, but when she advised S2 that it would require her to

work overtime, S2 immediately took the files back and told her she could

not work overtime. In a later statement, complainant confirmed that

she had a backlog of cases, but alleged that the backlog was the result

of S2's having assigned other DAOs' work to her while she was on leave,

in an attempt to "set her up" in March 2004.

We agree with the agency in concluding that complainant's explanation

for the backlog appears inconsistent and does not overcome management's

explanation that the backlog was one of the reasons why complainant was

not offered overtime. In addition, the record shows that complainant

had been on extensive Leave without Pay, which also precluded entitlement

to overtime.

Furthermore, the record shows that both Black and White employees

were provided with overtime opportunities. Additionally, a White

former coworker testified that management failed to provide her with

any information regarding overtime assignments. Although complainant

claimed that she was assigned all types of cases, a review of the record

confirms management's statements that complainant did not perform the

type of work that was assigned during the overtime sessions. Moreover,

the record is devoid of discriminatory or retaliatory animus on the part

of any responsible official. Accordingly, we find insufficient evidence

in the record to support a finding of discrimination or retaliation in

the denial of overtime.

Regarding the parking claim, S2 affirmed that the parking lot at the rear

of the building was shared by three Department of Homeland Security (DHS)

components and that effective April 7, 2004, private vehicle parking in

this area was strictly limited to evenings and weekends. According to

S2, the parking restriction was enforced after a U.S. Immigration and

Customs Enforcement (ICE) supervisor advised her that his agents were

unable to park their government vehicles in the lot because of the

privately-owned vehicles parked there. In addition, S2 stated that

she was not aware of any instance when complainant had driven to work.

Moreover, S2 noted that when she spoke to complainant about the parking

issue complainant advised her that she did not own a car. S2 affirmed

that she saw complainant get dropped off every day at the back door.

S2 also pointed out that three "handicap" parking spaces in front of

the building were available to CIS employees, including complainant.

Complainant asserts that S2 enforced the parking restriction only after

she realized that complainant was using it. A retired former coworker

(RW) testified that there was a long-standing policy against personal

vehicles parking in the lot without special permission from management.

RW also testified that an employee without disabilities had parked

a personal vehicle in the lot for several weeks. However, RW did

not indicate the time-frame when this occurred. Moreover, the record

indicates that it occurred some time in 2003. In addition, an Information

Technology Systems Administrator (TA) for CIS testified that the parking

lot was for government vehicles and special authorized cars only. TA also

acknowledged that he saw some employees park privately-owned vehicles

in the lot, but did not know if they had permission to park there.

We agree with the agency's conclusion that complainant failed to present

sufficient testimony or evidence that sufficiently rebuts S2's explanation

for the timing and reason for the enforcement of the parking restriction.

Accordingly, we conclude that complainant failed to establish that

S2's explanation for enforcing the parking restriction was pretext for

discrimination or reprisal.

Regarding the office move, S2 explained that complainant's original office

was down a separate corridor, requiring applicants to be escorted to and

from the waiting area, approximately 200 feet away. According to S2,

the converted office was much closer to the waiting area and eliminated

the need for complainant to escort applicants back to the waiting area

after interviews because it was near the exit door, reducing the walking

distance and the number of times complainant was required to get up

from her desk. S2 felt that this complied with complainant's medical

restriction of "limited walking. S2 also states that in March 2005,

she decided to move complainant to the converted office permanently,

after complainant presented a medical note dated February 23, 2005,

that suggested an increase in physical restrictions.3 S2 states that

she based her decision on the central location of the office, and the

office's proximity to the restrooms, applicants, and the break room.

In rebuttal, complainant asserts that the office space was substandard

and that being reassigned to the converted office was an attempt by S2

to isolate, intimidate, and spy on complainant. Despite complainant's

contention that she was isolated in her new office and that her coworkers

could no longer help her, S2 explained that the other DAOs could still

assist complainant in retrieving applicants because they had to walk past

the converted office when retrieving their own interviewees or going to

the restroom. S2 also testified that she observed employees stopping

to talk to complainant in the converted office every day. S2 added

that the converted office was the only DAO office with a telephone,

which complainant could use to call a supervisor for assistance.

Although complainant provided several statements about the converted

office, she did not dispute management's explanation that the room

eliminated her need to escort applicants back to the waiting room after

each interview. Complainant also did not dispute management's contention

that she continued to use her regular office until the move became

permanent in 2005. The record also revealed that S3 agreed to return

complainant to her original office if she presented medical documentation

to support that decision. However, complainant never provided the

agency with medical documentation to clarify her "limited" or "minimal"

walking restriction. Moreover, the preponderance of the evidence shows

that management's decision to reassign complainant to the converted office

was reasonably likely to reduce the amount of walking that complainant

engaged in each day. Upon review of the record, even assuming that the

reassignment to the converted office was an adverse employment action,

we do not find that complainant met her burden of establishing that the

reassignment was based upon discriminatory or retaliatory motives.

Regarding promotion opportunities, complainant states that, on July 19,

2005, a Supervisory Information Officer, GS-10, (CW5) (Black, fair skin,

no disability or prior EEO activity) was told that she would be in charge

of the office on July 20, 2005. Complainant further states that CW5

did not come into work on time on July 20, 2005, and there were problems

with missing files. Complainant states that she should have been placed

in charge of the office on July 20, 2005, as evidenced by the fact that

employees came to her with questions on that day and she was the person

who had to solve all the issues on that morning.

S2 states that she does not recall the July 20, 2005 incident described

by complainant. However, S2 states that she does not believe there was an

occasion when all supervisors and all other DAOs were not in the building.

S2 notes that there were three supervisors in the Norfolk Sub-Office,

which included herself, S1 and CW5. S2 states that if a supervisor

is on leave she is asked to select someone from her own unit to act as

supervisor. She adds that, if needed, when a supervisor is out of the

building, another supervisor will "pick up" her duties. S1 also did not

have any specific recollection of the incident described by complainant.

One of complainant's co-workers stated that he believes complainant was

not placed in charge on that particular day because S2 "did not like

[complainant]."

Complainant also notes that on September 1, 2005, CW3 was appointed

to the temporary (90-day) position of TSDAO. Complainant states that

she should have been appointed to the position instead of CW3 who is a

"favorite" of S3. Complainant notes that she has been a DAO for over

twelve years, while CW3 has held the DAO position since January 2003.

Complainant further states that she has trained all of the employees in

the Norfolk Sub-Office. In addition, complainant asserts that S2 told

her that she was tired of complainant and would do anything to help get

her disability retirement.

S3 stated that complainant was not selected for the position of TSDAO

because she was not reliable. S2 states that due to her own departure

from the Norfolk Sub-Office, CW3 was temporarily promoted into the

position of TSDAO for a period of 90 days. According to S2, CW3 was

selected because she had many years of previous supervisory experience

over two departments. S2 states that she did not select complainant

because complainant had only two years experience as a full-time

employee and no previous experience as a supervisor. S2 also noted that

complainant refused to speak to management and had requested that S1

and S2 never speak to her as well. Lastly, S2 noted that complainant's

disability retirement had been approved at the time.

S1 states that she selected CW3 because she was a level GS-12 employee who

was consistent in her work and reliable in her attendance. S1 noted that

CW3 was a seasoned officer, even though she had not been a level GS-12

employee as long as complainant. S1 also stated that she considered

complainant for the position, but did not select her because complainant's

disability retirement paperwork was approved on September 2, 2005.

S1 also noted that complainant told management that she could not work

with S1.

Complainant also asserts that on or about February 21, 2003, she received

an e-mail from an Immigration and Nationalization Service Headquarters

employee informing her that, because she was a term employee, she

was excluded from promotional testing. Complainant further asserts

that, during this period, she was "fired and then rehired in a demoted

position, which hindered any opportunity." Complainant believes that

the denial of promotional opportunities was "orchestrated in the Region

and Headquarters" because she had criticized the manner in which her

supervisors treated her.

S2 states that she had no involvement in denying promotional opportunities

to complainant. She states that the agency created a position especially

for complainant, who was a term employee at that time, so that she would

not lose her job with the Federal government. S2 explains that S3 had

a position transferred to the Norfolk Sub-Office; the position was only

posted for one week; and S3 personally gave the notice to complainant

before it was posted. S3 also assets that complainant had to drop back

a pay-grade, but the drop was only for one pay-period.

Upon review of the record, we find insufficient evidence to conclude that

management attempted to deny complainant any promotional opportunities.

While complainant makes numerous assertions regarding the behavior and

motives of management officials, the preponderance of the record does

not support her claims. Moreover, there is insufficient evidence in the

record to support the finding that any management official was motivated

by discriminatory or retaliatory animus toward complainant.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we find that

complainant has not met her burden of establishing discrimination or

retaliation on any basis alleged. Accordingly, we AFFIRM the final

agency decision.

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

May 15, 2009

Date

1 Because of their common factual background and in the interest of

judicial economy, complainant's two appeals have been consolidated for

adjudication.

2 See complainant's allegations set forth above for details of harassment

claims.

3 The February 23, 2005 medical note restricts complainant to "minimal"

standing, "minimal" walking, no climbing, squatting, or kneeling and

no lifting more than five pounds. The undisputed record shows that

complainant's job does not require any climbing, squatting, kneeling,

or lifting.

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2

0120071535

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

14

0120071535 & 0120090080

15

0120071535 & 0120090080