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).