0120111381
08-06-2013
Paula Sutton, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior Agency.
Paula Sutton,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
Agency.
Appeal No. 0120111381
Hearing No. 550-2009-00066X
Agency No. BLM-08-0060
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 12, 2010, final order concerning her equal employment opportunity (EEO) complaint 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. For the following reasons, the Agency's final order which found no discrimination is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a limited term Archeologist, GS-11 at the Agency's Battle Mountain Field Office facility. She began her assignment on December 10, 2006. Her appointment was subject to the successful completion of a one-year trial period. Complainant's duties were clearly defined at the outset of her tenure. Specifically, these duties related to the "Cortez Project," which involved the recent expansion of the Cortez Hills gold mining project. Complainant was tasked with five assignments. In addition to these assignments, she was also responsible for reviewing a charcoal sampling plan that the contractor was proposing, and a separate treatment and mitigation plan, with the ultimate approval of the project being contingent on the timely review and execution of each of the documents tasked to Complainant.
On April 21, 2009, Complainant filed a formal complaint alleging that the Agency subjected her to unlawful disparate treatment and harassment on the bases of sex (female) and disability (hearing impairment) when management: (1) did not renew her term appointment; (2) established an Employee Performance Appraisal Plan on February 12, 2007; (3) denied her a reasonable accommodation; (4) denied her request to attend training at Gallaudet University in Washington, D.C.; (5) denied her government housing; (6) threatened to relocate her work space to another location within the same office that could not support an assistive telephone device for her hearing impairment; (7) allowed her coworker, to harass her by withholding a report and blocking her exit from the conference room on one occasion, among other things; (8) accused her of "playing games" by using her hearing impairment as an excuse for not meeting her assignment deadlines; and (9) required her to submit letters for supervisory review before issuing the documents.
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on June 17 - 18, 2010. The AJ found that Complainant failed to establish that she was subjected to disparate treatment. Specifically, the AJ found that: Complainant's term appointment was not renewed; an Employee Performance Appraisal Plan was developed; and her letters needed supervisory review all because of Complainant's poor work performance. The AJ found the Agency's testimony regarding Complainant's work performance credible. First, the Agency explained that all subordinates were subjected to review of their work. Management indicated that with respect to Complainant, she was tasked with reading and writing reports related to the Cortez project. From the beginning of her employment however, there were problems with her work, namely she failed to provide the required reports. Management indicated that deadlines had to be pushed back as much as four times. Management testified that Complainant lacked focus and the ability to complete the basic requirements of her position. Further, the AJ found that the Agency credibly explained that Complainant was denied training at Gallaudet University because the training was for entry-level Archeologists and Complainant was hired as a Senior Archeologist and was therefore too advanced for the training. Her request to attend this training however, was ultimately granted. Additional, the AJ found that Complainant was denied government housing because there was no housing available at the beginning of her tenure.
With respect to Complainant's claims regarding reasonable accommodation, The record showed that Complainant requested a Cap Tel phone, adjustment to the PA speaker, a DVR, and handset, headphones, strobe light and answering machine. The AJ found that the Agency accommodated Complainant with regard to every request that she made in a timely manner. The Agency acknowledged that there were multiple problems regarding the Cap Tel phone but management diligently worked on it until it worked correctly. Further, the AJ explained that there was a discussion regarding moving Complainant's office but it was for business concerns and would not have affected Complainant. The AJ also found that it was Complainant that used her hearing impairment as the reason for not meeting her deadlines even though her position required her to read and write reports. Finally, the AJ called into question the credibility of Complainant's testimony regarding this and other matters during her testimony.
With regard to Complainant's claim of harassment, the AJ found that Complainant failed to demonstrate that she was subjected to a hostile work environment. The AJ determined that while it was clear that Complainant and her coworker did not get along, the AJ found that the evidence did not show that discriminatory animus was involved. The AJ determined that the coworker credibly testified that she did not withhold anything that was necessary for the completion of any of Complainant's reports. She admitted however, that she did block Complainant's way out of the conference room out of genuine frustration because Complainant was attempting to leave the room in the middle of a work-related discussion. The coworker testified that management spoke to both parties.
The AJ therefore found that Complainant failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. The AJ found that Complainant also failed to show that she was not provided a reasonable accommodation, as the evidence showed that all of her requests were provided. Finally, the AJ found that even if all the claims were considered, without more, such incidents did not constitute actionable adverse actions, nor were they sufficiently severe or pervasive to rise to the level of a hostile work environment. Accordingly, the AJ found that Complainant failed to demonstrate that she had been subjected to discrimination, denied an accommodation, or subjected to harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ failed to consider the Agency's institutional bias against the disabled. Complainant also indicates that the work that she was assigned was very demanding and questions whether the performance standards were those of the Agency or the private client. Further, she contends that the AJ should have analyzed the case first as a Rehabilitation case and then under a reasonable accommodation standard. Finally, Complainant maintains that her performance issues were attributable to her hearing deficit and the Agency's failure to accommodation her. She indicates that it took the Agency 11-months to get the Cap Tel phone working correctly.
ANALYSIS AND FINDINGS
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 final Agency order. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the evidence supports the AJ's finding that Complainant failed to show that the Agency's nondiscriminatory reasons were pretext for discrimination. Further, we find that the AJ correctly found that even if all the incidents were considered, the incidents are not severe or pervasive enough to establish a hostile work environment. Finally, we find that the AJ correctly analyzed Complainant's reasonable accommodation claim. The AJ found that assuming arguendo that Complainant was an individual with a disability, the evidence showed that Complainant was provided with every accommodation that she suggested. The record shows that the Agency diligently worked on the Cap Tel phone, to the point that the Cap Tel representative was invited in, a dedicated phone line was installed, and the help desk responded to any inquiries quickly. We agree that Complainant failed to show that her performance deficiencies were related to the Agency's actions or efforts to get the Cap Tel phone working properly. Accordingly, we find that the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record. The Agency's final order finding no discrimination is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
__8/6/13________________
Date
2
0120111381
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111381