Paula D. Spikes, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01976786 (E.E.O.C. Feb. 10, 2000)

01976786

02-10-2000

Paula D. Spikes, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Paula D. Spikes, )

Complainant, )

) Appeal No. 01976786

v. ) Agency No. SAC-96-AF-0372-E

)

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision

(FAD) concerning her Equal Employment Opportunity (EEO) complaint of

unlawful employment discrimination based on race (Black), sex (female),

and physical disability (back injury), in violation of 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>

Complainant alleges she was discriminated against when she was subjected

to harassment and then terminated from her probationary position.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the Commission AFFIRMS the FAD.

The record reveals that in February, 1994, complainant commenced

employment as a non-appropriated fund Custodial Worker, NA-3566-02,

for the agency's Lodging Office at the McClellan Air Force Base in

California. In July, 1994, complainant reported a work-related back

injury,began extended sick leave, and filed a worker's compensation claim.

In November, 1994, complainant returned to light duty. According to

a document from her doctor, complainant was released from all medical

restrictions in December, 1994. However, complainant contends she

was unaware of this. She was absent from work during the first ten days

of 1995, and was terminated effective January 19, 1995, for "failure to

follow proper leave requesting procedures." Believing she was a victim

of discrimination, complainant sought EEO counseling and, subsequently,

filed a complaint on April 6, 1995. Complainant alleged that prior to

her termination, she was subjected to harassment by supervisors regarding

her medical restrictions, and that they failed to accommodate her

alleged disability. At the conclusion of the investigation, complainant

requested a hearing before an Equal Employment Opportunity Commission

(EEOC) Administrative Judge (AJ). The AJ subsequently canceled the

hearing on grounds of failure to prosecute, and remanded the complaint

for issuance of a FAD.

The FAD concluded that complainant failed to establish a prima facie case

of disability discrimination because she was not a "qualified individual

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

further concluded that assuming arguendo complainant had established a

prima facie case of race or sex discrimination, she had nonetheless failed

to prove by a preponderance of the evidence that management's proffered

reasons for her termination were a pretext for discrimination. On appeal,

complainant contends that the AJ improperly remanded her complaint for

issuance of a FAD without a hearing due to her failure to participate in

the pre-hearing conference call. Specifically, complainant alleges that

"[d]ue to an immediate family illness in Louisiana and the heavy phone

traffic that morning, the call was missed." The agency requests that

we affirm the FAD.

The agency Record of Investigation (ROI) and the FAD construed

complainant's complaint as challenging solely her termination, based on a

disparate treatment theory. The ROI and the FAD addressed complainant's

harassment contentions as background evidence rather than comprising

part of her claim for relief. Based on a fair reading of the complaint,

we will address complainant's harassment contentions as a separate claim.

Disability Discrimination

To establish a prima facie case of disparate treatment based on

disability, complainant must show that: (1) she meets the regulatory

definition of a person with a disability , 29 C.F.R. � 1630.2(g); (2)

she is a qualified person with a disability, 29 C.F.R. � 1630.2(m); and

(3) she was subjected to an adverse personnel action under circumstances

giving rise to an inference of discrimination, i.e.complainant must make

a plausible showing that there is a nexus or causal relationship between

the disabling condition and the disputed adverse action. See Prewitt

v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981); Bridges

v. United States Postal Service, EEOC Appeal No. 01891679 (January 24,

1990).<2> An "individual with a disability" is defined by the statute as

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 an impairment. 29 C.F.R. � 1630.2(g).

Major life activities include activities such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. 29 C.F.R. � 1630.2(i).

After a careful review of the record, we agree with the agency that

complainant failed to meet her burden to establish that she was an

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

"Even if an employee with an occupational injury has a 'disability'

as defined by a worker's compensation statute, s/he may not have a

'disability' for ADA purposes." EEOC Enforcement Guidance: Workers'

Compensation and the ADA at question 1 (September 3, 1996). In the

instant case, the medical documentation contained in the record makes

no reference to a specific diagnosis of complainant's back injury.

The documentation confirms that she was on sick leave from the time of

her injury in July, 1994 until November, 1994, at which time she returned

to work with medical restrictions which included limiting prolonged

sitting to one hour, standing to one hour, walking to one-half hour,

and bending, squatting, climbing, kneeling, and twisting to one-half hour

intermittently, with short periods of rest. Complainant was also limited

to lifting ten pounds, and to climbing a maximum of 10�15 stairs, except

at the beginning or end of the day. See Record of Investigation (ROI)

at 23-24. Complainant's doctor indicated on the restriction form that

within these restrictions, complainant was permitted to work eight hours

a day. Id. Her doctor released her from these medical restrictions as

of December 27, 1994, except to note that she could not lift more than

fifty pounds. ROI at 82. Complainant stated in her affidavit that she

has "little or no documentation" to show that her back injury constituted

a disability, and further attested:

I am going to a doctor who put me on physical therapy . . . I really

don't know if the Doctor completed a diagnosis form. Day-to-day,

going to the grocery store, I could pack groceries, but I would feel

really bad afterward, and some other activities would put me in bed.

Now, I feel quite a bit better, and I have resumed roller-skating.

I've tried to get on with my normal life, but there are some limitations.

I am still not able to take up long-distance running again.

ROI at 54. Thus, according to complainant's medical records and by

her own admission, within approximately four months of her injury,

complainant's back injury did not limit her ability to engage in

any of the activities which were restricted during her convalescence.

A temporary impairment of this nature does not rise to the level of a

substantial limitation within the meaning of the Rehabilitation Act.

See EEOC Compliance Manual at 902-33 (March 14, 1995). Complainant's

continued inability to engage in long-distance running even after a longer

period of time does not constitute a substantial limitation of a major

life activity under the Rehabilitation Act. Scura v. United States Postal

Service, EEOC Appeal No. 01965021 (October 8, 1998).<3> Accordingly,

the FAD correctly concluded that complainant is not an "individual

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

Therefore, complainant cannot establish a prima facie case of disability

discrimination based on either disparate treatment or harassment.

Race and Sex Discrimination

A. Disparate Treatment

Complainant also contends that she was discriminated against on the basis

of her race and sex with respect to her termination because a Hawaiian

co-worker and two male co-workers were treated more favorably with respect

to their respective requests for light duty than was complainant in the

period preceding her termination. While comparative evidence is usually

used to establish disparate treatment, complainant need only set forth

some evidence of acts from which, if otherwise unexplained, an inference

of discrimination can be drawn. Furnco Construction Corp. v. Waters, 438

U.S. 567, 576 (1978). In order for employees to be considered similarly

situated, all relevant aspects of the employees' work situation must be

identical or nearly identical. This requires that they engaged in the same

conduct, reported to the same supervisor, performed the same job function,

and had equivalent disciplinary records. Hunter v. United States Postal

Service, EEOC Request No. 05960762 (October 1, 1998); Lewis v. United

States Postal Service, EEOC Request No. 05940307 (November 10, 1994).

The ROI does not contain any evidence regarding the comparators

complainant identified, because the EEO investigator concluded that the

only issue in the case was complainant's termination, and therefore

a comparison regarding light duty requests was not relevant. In the

particular factual circumstances of this case, we agree. Management has

submitted evidence that complainant was terminated due to her failure to

follow leave request procedures, and complainant has failed to establish

that she complied with the procedures at issue. See ROI at 083 (6/5/94

memorandum by custodial foreman requesting complainant's termination

based on her failure to follow sick leave request procedures, noting

that the person from whom complainant contends she received sick leave

approval was not authorized to approve leave, that the employees had

been so advised, and that complainant was a probationary employee).<4>

We therefore conclude, based on McDonnell Douglas v. Green, 411 U.S. 792

(1973), that absent any evidence sufficient to support an inference of

discrimination, complainant has failed to establish a prima facie case

of race or sex discrimination based on disparate treatment.

B. Harassment

As noted above, complainant contends in her formal complaint that for a

period of time which culminated with her termination, she was subjected

to hostile work environment harassment. Specifically, complainant

contends that in a series of interactions with supervisory personnel,

she was mistreated because of her race or sex.

To establish a prima facie case of hostile environment harassment, a

complainant must show that: (1) s/he belongs to a statutorily protected

class; (2) s/he was subjected to harassment in the form of unwelcome

verbal or physical conduct 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. Jackson v. United States Postal Service,

EEOC Appeal No. 01972555 (April 15, 1999); Humphrey v. United States

Postal Service, Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �

1604.11. In determining that a working environment is hostile, factors

to consider are the frequency of the alleged discriminatory conduct,

its severity, whether it is physically threatening or humiliating,

and if it unreasonably interferes with an employee's work performance.

See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice

No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift

Systems, Inc. at 3, 6.

The Supreme Court has stated: "Conduct that is not severe or

pervasive enough to create an objectively hostile work environment -

an environment that a reasonable person would find hostile or abusive

- is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).

Based on a careful review of the record, we conclude that the acts of

alleged harassment which complainant challenges were in the nature of

ordinary personnel actions which do not satisfy the foregoing standard.

See ROI at 8-17 (complainant's testimony regarding management's handling

of her medical evaluation and paperwork for worker's compensation, as

well as management's telephone inquiries to complainant and her doctor

regarding her requests for sick leave and light duty). Accordingly,

we conclude that complainant has failed to establish a prima facie case

of harassment based on race or sex.

Cancellation of Hearing

Finally, we find no grounds to reverse the AJ's cancellation of the

hearing for failure to prosecute. The Commission has held that, in

certain circumstances, an AJ has the authority to cancel a hearing and

remand a case for a FAD where the complainant fails to cooperate at

the hearing stage. See Schneider v. Department of the Treasury, EEOC

Appeal No. 01933192 (December 16, 1993), request to reconsider denied,

EEOC Request No. 05940298 (December 9, 1994). Complainant contends

that telephone useage due to illness of an immediate family member in

Louisiana precluded her from being able to receive the pre-hearing

conference call on April 25, 1997. Even accepting complainant's

contention, the record is undisputed that (1) by order entered January 2,

1997, the Administrative Judge advised the parties that a pre-hearing

conference would be held on April 25, 1997; (2) on April 24, 1997, the

agency's Attorney Advisor attempted to reach complainant at the last

known telephone number available for her but was told by the person

who answered the phone that complainant could not be reached there; (3)

the telephone number the Attorney Advisor called is the same telephone

number which complainant lists on her notice of appeal as her current

daytime number (4) on April 25, 1997, the agency's same representative

called this same number at 8:40 a.m. and, reaching an answering machine,

left a message giving his name and telephone number, advising complainant

that the pre-hearing conference call was due to begin at 9:00 a.m.,

and requesting that complainant contact him immediately; (5) the agency

representative called complainant again at 9:00 a.m., and several times

later on April 25, 1997, but did not reach complainant; (6) as of May 5,

1997, complainant had still not contacted either the agency representative

or the Administrative Judge, even though she admits she was aware at

the time that April 25, 1997 was the scheduled date of the pre-hearing

conference call. See Order entered by Administrative Judge May 5, 1997;

letter from Attorney Advisor to Administrative Judge dated May 2, 1997.

Moreover, complainant has failed to explain her failure to contact either

the agency representative or the Administrative Judge in the ensuing days.

Accordingly, we find no basis for reversing the AJ's finding of failure

to prosecute and subsequent remand to the agency for issuance of a FAD

without a hearing.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the FAD.

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:

February 10, 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 Assistant1 On 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.

3We note that a request for approval to use leave for an absence caused

by a disability is an implicit request that the absence not be used

to support a disciplinary action, and thus may constitute a request

for accommodation. McNeil v. United States Postal Service, EEOC Appeal

No. 05960436 (July 28, 1998). The agency therefore has an obligation to

accommodate certain absences of a qualified individual with a disability

where no undue hardship is posed. Id.; see also EEOC Enforcement Guidance

on Reasonable Accommodation and Undue Hardship Under the Americans With

Disabilities Act, No. 915.002 (March 1, 1999). Nevertheless, given our

conclusion that complainant is not an "individual with a disability," we

do not reach the issue of whether the agency's termination of complainant

itself constitutes a failure to provide reasonable accommodation on the

facts of this particular case.

4 Moreover, although it is by no means dispositive, we note that

complainant's first-line and second-line supervisors responsible for the

discipline complainant challenges are both female, and one identifies her

race as Black and the other as Hispanic/Black. We note that complainant

asserts that the supervisor who is Hispanic/Black is from Panama and

was racially biased against African-Americans. However, even assuming

arguendo complainant established a prima facie case of race or sex

discrimination, complainant has not established by a preponderance of

the evidence that management's proffered reasons for her termination

were pretextual and that the real reason was discrimination. St. Mary's

Honor Center v. Hicks, 509 U.S. 502, 519 (1993).