01970689
09-13-2000
Roberta R. Gatie, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Roberta R. Gatie v. Department of the Navy
01970689
09-13-00
.
Roberta R. Gatie,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01970689
Agency No. DON-95-68351-001
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the agency's final decision (FAD)
concerning her allegation that the agency violated Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.; and � 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> The appeal is accepted by the Commission in
accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented in this appeal is whether complainant established that
she was discriminated against on the bases of her physical disability
(knee and back injuries), reprisal and age (DOB: September 4, 1940)
when she was allegedly harassed by her supervisor, which resulted in her
allegedly suffering a nervous breakdown on December 13, 1994, because
of stress.
BACKGROUND
On February 2, 1995, complainant filed a formal complaint containing,
among other things, the above issue.<2> Following an investigation of the
above issue, complainant was provided a copy of the investigative file and
notified of her right to request a hearing before an EEOC Administrative
Judge. By letter dated September 18, 1995, complainant requested a final
agency decision without a hearing. Thereafter, the agency, analyzing
complainant's complaint as a disparate treatment claim, issued a final
decision dated September 25, 1996, which found that complainant had not
been discriminated against. This appeal followed.
At the time of her complaint, complainant was employed as an Accounting
Technician, GS-05, at the Naval Reserve Readiness Command Region
One, Naval Education and Training Center, Newport, Rhode Island (the
Unit). According to Complainant, in 1989, while working at another
facility, she suffered a knee injury that resulted in a 10 percent
permanent disability rating by the Office of Worker's Compensation
Programs (OWCP). In December 1993, she also injured her back at work and
was placed on temporary restrictions. Complainant was able to return to
full duties without any medical limitations on January 31, 1994.
According to complainant, who had never engaged in any protected EEO
activity prior to seeking counseling regarding the instant complaint, her
supervisor, S-1, began harassing her after she was injured in December
1993. She stated that S-1, in early January 1994, started complaining
about the additional paperwork she had because of complainant's injury,
and the extra work complainant's co-workers had to contend with in her
absence. According to complainant, S-1 threatened that if she did not
return to work soon, she would hire someone else to do her job. After
she returned to work, S-1, according to complainant, refused to let her
print weekly accounting reports, made references to her age and indicated
that her back injury took longer to heal because she was older.
S-1 stated that complainant's absence had little impact on the workload
because the position had been vacant before complainant started working
on November 15, 1993. Therefore, S-1 maintained that complainant had
not fully assumed her duties when she was injured in December. S-1 also
maintained that she helped complainant as much as she could with her
OWCP paperwork and personally made copies of everything for her. Contrary
to complainant's assertion, S-1 also stated that, on several occasions,
she assured her that her job was not in jeopardy and that she could stay
out as long as she needed.
After complainant returned to work in January 1994, S-1 asked that
she not handle boxes of computer paper or do any other heavy lifting.
At the time, complainant's office was responsible for printing large,
heavy reports which had to be lifted from the floor. S-1 stated that
"[I] fully believe that injuries and/or surgeries are very traumatic
on the body and I have a personal policy of allowing a year of recovery
before allowing an employee to do work that could cause further damage
to the body." Investigative File (IF) at pg. 42.
Complainant alleged that S-1 treated her in a harassing, belittling
and demeaning manner and singled her out in private and in front of
her co-workers. She also maintained that her supervisor frequently
reduced her to tears and yelled at her. Complainant also testified
that on two occasions S-1 demanded that she get off the telephone
immediately and threatened to charge her with insubordination, if
she failed to immediately perform a task. According to complainant,
13 Accounting Technicians left the Unit between 1989 and 1993 because
of S-1. She did acknowledge, however, that some of these individuals
were the wives of military members, who left when their husbands
were transferred. On December 13, 1994, complainant was diagnosed
with a severe anxiety disorder. S-1 denied harassing complainant or
any other employee. According to her, she tried "not to come across
so strong whenever [she] had discussions" with her employees. IF at
pg. 106. According to S-1, she also made sure that complainant received
her Christmas gifts when she was out of the office in December 1993.
The record indicates that complainant received an "Outstanding"
performance rating in May 1994, and a Letter of Appreciation in
November 1994 from S-1. According to S-1, she had very little contact
with complainant and had requested that Accounting Technicians go to
the Lead Accounting Technicians when they had accounting questions and
problems. Despite this request, S-1 stated that complainant repeatedly
came to her with questions and to discuss her personal family problems.
According to S-1, this was evidence that she was not harassing her.
In October or November 1994, complainant told S-1 that she thought she was
being more critical of her than on the other Accounting Technicians. S-1
held a meeting, with complainant and the other Accounting Technicians,
and expressed complainant's concerns. According to S-1, the consensus
of opinion was that it did appear that she was more critical of the
complainant. S-1 told her employees that she would try not "to come across
so strongly in the future" and would try not to single any particular
person out. S-1 also indicated that her door was always open to them if
they had any problems with her actions. Finally, S-1 stated that she did
not treat complainant differently than her coworkers and did not harass
her because of her age or physical disability.
The record contains statements from complainant's co-workers that
indicated that S-1 treated complainant the same way she treated others
and that her problems with S-1 were mainly due to personality conflicts.
One of complainant's co-workers, we note, testified that complainant
had personal problems at home, which she brought to work with her.
ANALYSIS AND FINDINGS
Disability Discrimination
To establish a prima facie case of disability discrimination, complainant
must show that: 1) she is an individual with a disability as defined in 29
C.F.R. � 1630.2(g); 2) she is a "qualified" individual with a disability
as defined in 29 C.F.R. � 1630.2(m); and (3) there is a nexus between
her disability and the agency's adverse employment action. See Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).<3>
The threshold question is whether complainant is an individual with a
disability within the meaning of the regulations. An individual with
a disability is one who: 1) has a physical or mental impairment that
substantially limits one or more of that person's major life activities;
2) has a record of such an impairment; or 3) is regarded as having such
an impairment. 29 C.F.R. � 1630.2(g). Major life activities include
the functions of caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform the major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id. Complainant, we note, offered no evidence regarding
any limitations that her injured knee or back imposed on her major life
activities. Consequently, we find that complainant failed to show that,
at the time she was allegedly being harassed by S-1, she had a physical
impairment which substantially limited one or more major life activities.
See Schultz v. United States Postal Service, EEOC Request No. 05950724
(September 26, 1996); Sanders v. Arneson Products Inc., 91 F.3d 1351,
1353 (9th Cir. 1996); See also The Interpretive Guidance on Title I of
The Americans With Disabilities Act, 29 C.F.R. � 1630.2(j).
We also find that complainant failed to show that she has a record
of an impairment that substantially limited one or more of her major
life activities. A person has a record of a disability, pursuant
to 29 C.F.R. � 1630.2(k), when they have a history of, or have
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities. The focus is
not merely on whether the individual has a physiological disorder
or condition, but whether they have been classified (correctly or
incorrectly) as having an impairment that substantially limits one or
more of their major life activities. Thus, evidence that a person has been
diagnosed as having an impairment does not establish that the person has
a record of a disability. In the present case, the fact that complainant
has a knee injury for which the OWCP has granted a 10% disability rating,
does not necessarily indicate that she is disabled within the meaning of
the Rehabilitation Act.<4> We also note that with regard to complainant's
back injury in December 1993, the record indicates that it was a temporary
condition. Complainant was able to return to full-duty on January 31,
1994, with no physical limitations imposed upon her.<5>
Finally, we find no persuasive evidence that complainant was regarded by
management officials or co-workers as having a substantially limiting
condition, prior to December 13, 1994. We note in this regard the
testimony of witnesses who indicated that they were aware of her knee
and/or back problems, but thought they were temporary conditions. Also,
although S-1 limited the amount of lifting complainant could do, her
unrebutted testimony was that she did this whenever an employee had
surgery or was otherwise injured.<6>
Reprisal
A prima facie case of reprisal is established by showing that: (1)
complainant engaged in protected EEO related activity; (2) the employer
was aware of the protected activity; (3) complainant was subsequently
subjected to adverse treatment; and (4) the adverse action followed
the protected activity within such a period of time that retaliatory
motivation may be inferred. Manoharan v. Columbia University College of
Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould,
808 F.2d 493, 500 (6th Cir. 1987); McKenna v. Weinberger, 729 F.2d 783,
790, (D.C. Cir. 1984).
After a careful review of the record, we find that complainant did
not establish a prima facie case of discrimination based on reprisal.
According to complainant, she never engaged in any protected EEO activity
prior to seeking counseling with regard to this matter on December
22, 1994. IF at pg. 96. In her appeal statement, complainant seemed to
indicate that her allegation of reprisal was based on matters that took
place during the investigation of her formal and informal complaints.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability or religion is
unlawful if it is sufficiently patterned or pervasive. Garretson
v. Department of Veterans Affairs, EEOC Appeal No. 01945351 (April 4,
1996); McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985).
The Commission's Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June
18, 1999) identifies two types of such harassment: (1) harassment
that results in a tangible employment action; and (2) harassment that
creates a hostile work environment. Based on the facts of this case,
we will analyze this matter as an allegation of harassment that creates
a hostile work environment.
In order for harassment to be considered as conduct in violation of the
regulations that the Commission enforces, it must be pervasive or severe
enough to significantly and adversely alter the conditions of the victim's
employment and create an abusive working environment. Harris v. Forklift
Systems, Inc., 114 S.Ct. 367 (1993). The conduct in question is evaluated
from the standpoint of a reasonable person, taking into account the
particular context in which it occurred. Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986). The Commission notes
that unless the conduct is very severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
In the present case, the Commission finds that complainant has not
established that she was harassed on the basis of her age. We do not find
that the incidents identified by complainant, i.e., references being made
to her age and comments that her back injury took longer to heal because
she was older, were pervasive or severe enough to significantly and
adversely alter the conditions of complainant's employment. Furthermore,
there is no indication that a discriminatory animus based on age was
the motivation behind S-1's treatment of complainant. We note in this
regard complainant's comments on appeal that:
The pure and simple truth was that everyone hated and disrespected the
woman as she was mean, cruel, and rude to everyone, civilian and military,
and the only reason that most of the co-workers subsequently sided with
her was because they were afraid not to. I have heard her yell, scream,
demean, belittle, and harass everyone in that office as well as others
outside of that office . . . .
Complainant's appeal statement at pg. 10.
Accordingly, we affirm the final agency decision and find that complainant
has not proven, by a preponderance of the evidence, that the agency
subjected her to discriminatory harassment.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
_09-13-00_____________________________
Date
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
______________________________
1On 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.
2A second issue concerning the transferring of some of complainant's
duties was dismissed by the agency. Complainant did not appeal the
dismissal of this issue.
3The 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.
4Bailey v. USPS, EEOC Appeal No. 01952545 (March 7, 1996); Walker v. DOD,
EEOC Request No. 05940919 (April 6, 1995).
5Generally, a temporary condition will not support a finding of
disability. Schultz, supra.
6In reaching the above determination, we have examined complainant's
disability claim in light of the Supreme Court's recent decisions in
Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct. 2139 (1999);
Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S.Ct. 2133
(1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162
(1999); Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119
S.Ct 1597 (1999); and Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196
(1998).