01a60995_r
05-12-2006
Peggy P. Sharp, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Peggy P. Sharp v. Department of Veterans Affairs,
01A60995
May 12, 2006
.
Peggy P. Sharp,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A60995
Agency No. 2004-0565-2004100672
Hearing No. 140-2005-00075X
DECISION
Complainant filed an appeal from the agency's final action dated October
20, 2005, finding no discrimination with regard to her complaint.
The record indicates that complainant, a Housekeeping Aide, filed her
complaint, dated March 9, 2004, alleging discrimination based on race
(African American), sex (female), disability (carpal tunnel syndrome)
and in reprisal for prior EEO activity when:<1>
On November 20, 2003, a Housekeeping Foreman threatened to write her
up and told her that she could use leave without pay (LWOP) even though
she had leave accrued.
On November 21, 2003, her coworker told her in a loud and threatening
voice �move the desk.�
On February 9, 2004, she asked to receive formal time and leave training
and on February 10, 2004, she was denied such training.
On March 3, 2004, she was notified by the Chief of Environment Management
that her request for advanced leave for the period March 25 - April 24,
2004, was denied.
On May 11, 2004, she received a letter indicating that effective May 13,
2004, she was reassigned to the Housekeeping department.
On May 24, 2004, she received a letter from a Housekeeping Supervisor
asking her to submit medical documentation from her physician by June 2,
2004.
On June 9, 2004, an Associate Director refused to meet with her.
On June 9, 2004, when she went to check on her Office of Workers'
Compensation Programs (OWCP) paperwork, the Housekeeping Foreman refused
to let her return to the office to obtain her purse and threatened to
have the agency police escort her off the facility grounds.
On June 30, 2004, it was suggested to complainant to request LWOP because
she was to be terminated.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On
September 26, 2005, the AJ issued a decision without holding a hearing,
finding no discrimination. The agency's final action implemented the
AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is �material�
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review, the Commission finds that the AJ's issuance of a decision
without a hearing was proper in this case since there is no genuine issue
of material fact. The AJ found that the agency did not discriminate
against complainant.
With regard to claim (1), the AJ noted that complainant claimed that the
Housekeeping Foreman threatened to write her up because she did not want
to stay in the supply room. Complainant indicated that she was alone
and did not want to sit in the room all day with the odor. The Foreman
stated that he asked her to perform some duties, such as vacuuming.
Instead of responding, complainant stared at the ceiling for five minutes.
Complainant later called him back and told him that she could not do her
assigned work and requested sick leave for the remainder of the day.
The Foreman denied ordering complainant to perform any duty outside
of her restrictions. The AJ noted that a safety officer inspected the
supply room and smelled odors. The AJ found that after water was poured
into the floor drains, the smell dissipated.
With regard to claim (2), the AJ noted that the identified coworker
admitted asking complainant to move her desk since it was blocking the
housekeeping equipment. When complainant later did not move her desk,
he moved the desk himself and the Foreman ordered him to stay away from
and to not come in contact with complainant in any way.
With regard to claim (3), the AJ stated that according to the Chief of
Environment Management, since complainant was assigned as a Housekeeping
Aide, the agency regulations prohibited her from taking training on time
and attendance.
With regard to claim (4), the AJ indicated that according to the
Foreman, complainant came in twice and indicated that she wanted to
apply for advanced sick leave. She brought medical documentation with
her on each occasion. However, on the following day, she canceled the
leave requested because she �changed her mind.� The Chief stated that
complainant's leave request was canceled because she had a current claim
with OWCP and that her leave should have been requested through OWCP.
With regard to claim (5), the Chief stated that she received documentation
from complainant's physician returning her to full duty. She informed
complainant that she was still a Housekeeping Aide and was assigned to
work in the laundry.
With regard to claim (6), complainant claimed that after she reported
back to the laundry, she re-injured her hand and her doctor requested
a light duty assignment for complainant. The Housekeeping Supervisor
admitted asking complainant for the medical documentation in order to
determine which tasks she could and could not perform.
With regard to claim (7), the Associate Director stated that it was his
policy to have employees follow the chain of command when issues arose.
He indicated that he met with a diverse group of employees and other
personnel throughout a workday.
With regard to claim (8), the AJ stated that according to management,
after it was determined that complainant left her purse in the work area,
it was brought to her by another employee. Management indicated that
complainant �was on leave and had no business being there.�
With regard to claim (9), the AJ stated that according to the agency,
management �tried everything in [their] power to accommodate complainant
but everything [they] asked her to do, she said she couldn't do it.�
Based on the foregoing, the AJ determined that complainant failed to
establish a prima facie case of discrimination. Specifically, the AJ
stated that complainant did not show that she was treated less favorably
than any similarly situated employee outside her protected group. The AJ
also stated that there was no evidence that the alleged responsible
officials in the instant complaint were aware of complainant's previous
EEO participation. Assuming complainant had established a prima facie
case, the AJ found that complainant failed to proffer any evidence to
show a nexus between the previous protected activity and her present
claims. The AJ also determined that complainant was not a qualified
person with a disability in that she was unable to perform the duties
of her job with or without accommodation.<2> Specifically, the agency
stated that there was no accommodation to offer complainant and she, in
turn, failed to proffer any possible accommodations during the period
in question. After a careful review of the record, we agree with the
AJ that complainant's interaction with management appeared stressed
but there was no evidence that the stress was built on discrimination.
Rather, the record indicates that non-discriminatory, personality
conflicts were the bases for complainant's concerns. Furthermore,
because no accommodation existed for complainant, we can not find that
complainant was improperly denied a reasonable accommodation.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the agency's final action is hereby
AFFIRMED because the AJ's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 12, 2006
__________________
Date
1The record indicates that during her prehearing conference,
complainant withdrew her sexual harassment claim against her coworker,
described in claim (2).
2We do not address whether complainant is disabled. We do find that
complainant is not a �qualified� individual with a disability because
she can not perform the essential functions of the position with or
without a reasonable accommodation. See 29 C.F.R. � 1630.2(m)