01A12777
03-06-2003
Rosemary C. Butler, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Rosemary C. Butler v. Department of Veterans Affairs
01A12777
March 6, 2003
.
Rosemary C. Butler,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12777
Agency No. 995621
DECISION
Rosemary C. Butler (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of unlawful 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that during the relevant time, complainant was
employed as a Seamstress/Sewing Machine Operator at the agency's Medical
Center in Jackson, Mississippi. Complainant sought EEO counseling and
subsequently filed a formal complaint on October 13, 1999, alleging that
she was discriminated against on the bases of race (African-American),
sex (female), disability (carpal tunnel syndrome, degenerative arthritis,
back pain), and reprisal for prior EEO activity (unspecified) when:
(1) she was denied a reasonable accommodation when, on August 3, 1999,
her Seamstress position was downgraded, whereas male employees injured
on-the-job were accommodated without being downgraded or losing their
jobs;
(2) On September 15, 1999, she was offered a position as a Housekeeping
Aide as an accommodation, which she declined for fear of aggravating
her disability;
(3) during her midyear evaluation, management still rated her using
the Seamstress critical element, which she was not able to perform
because of her disability;
(4) she was subjected to harassment due to the following incidents:
she did not receive an incentive award with other Linen Room employees
in July/August 1999;
she was required to take annual leave for going to the union office
to speak with a union representative on September 16, 1999;
the assistant chief of her service told her to stop submitting work
orders for what she believed to be workplace hazards in December 1999
and January 2000;
a White supervisor who provides direction for the same number of
employees, is classified as a supervisor, whereas complainant is not.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing, but subsequently withdrew that request. The agency
therefore issued a final decision.
In its FAD, the agency first concluded that the incidents complainant
described as harassing were no more than incidents of interpersonal
disagreement and did not rise to the level of harassment. The agency
also noted that complainant failed to provide any evidence to establish
a connection between the incidents and her race, sex, prior EEO activity
or disability. The agency stated that the events described in 4(b) and
4(c) did not occur and noted that the White supervisor whom complainant
referenced in Issue 4(d) supervised high-level employees and the entire
transportation operation, unlike complainant. In regard to Issue 4(a),
the agency noted that incentive awards were given to employees who took
on added duties and responsibilities, which complainant did not.
Turning to complainant's claims of disparate treatment, the agency
concluded that complainant failed to establish a prima facie case in
regard to any of her claims. In so finding, the agency noted that
complainant did not demonstrate that she was treated differently than
similarly situated co-workers, or provide any other evidence to raise
an inference of discrimination or reprisal.
The agency then concluded that complainant failed to establish that she is
an individual with a disability within the meaning of the Rehabilitation
Act. The agency noted that while complainant may suffer from a serious
injury, she failed to establish that her condition substantially limited
a major life activity. The agency found that it therefore had no duty
to provide complainant with a reasonable accommodation.
The agency went on to find that, assuming complainant had established
a prima facie case, management officials articulated legitimate
non-discriminatory reasons for their actions. Specifically, the agency
noted that it attempted to accommodate complainant by providing her
with various types of equipment and offering her a different position.
The agency found that complainant insisted on becoming a supervisor
as an alternative to the agency's suggestions and noted that this was
not reasonable.
Moreover, the agency noted that complainant was reviewed as a Seamstress
in her mid-year review because she was classified and paid as a
Seamstress. Complainant acknowledged that she was not rated in the duty
which she did not perform due to her impairment and failed to indicate
any harm that was caused by this incident. The record establishes that
by the time of the end-of-the-year appraisal, complainant was performing
a different job and was rated accordingly.
The agency then noted that complainant was not given an incentive award
due to her behavior and attitude and that she was not charged annual
leave on September 16, 1999 or told to stop submitting work orders.
Her supervisor (S1) noted that he and complainant did not agree on how
the Linen Room should be operated, but denied that any actions taken
involving complainant were motivated by her membership in a protected
group. Finally, the agency reiterated that the White employee with
whom complainant compared herself, supervised higher-graded employees
and the entire transportation operation and was therefore a supervisor.
The agency stated that complainant simply provided direction to other
employees and that this did not make her position a supervisory one.
Finding that complainant failed to establish that the agency's
explanations were pretextual, the agency concluded that she failed to
establish that she was subjected to discrimination or retaliation.
Complainant provides no arguments on appeal and the agency requests that
we affirm its FAD.
ANALYSIS AND FINDINGS
Turning first to the issue of disability-based discrimination, as a
threshold matter complainant must establish that she is a �qualified
individual with disability� within the meaning of the Rehabilitation Act.
An "individual with a disability" is 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,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). A "qualified" individual with a disability is one
who satisfies the requirements for the employment position he/she holds
or desires and can perform the essential functions of that position with
or without reasonable accommodation. 29 C.F.R. � 1630.2(m).
Here, even assuming that complainant is an individual with a disability,
she failed to establish by a preponderance of the evidence that she is a
qualified individual with a disability. It is undisputed that complainant
cannot perform the essential functions of the seamstress position which
she held when she requested an accommodation. Complainant herself noted
that due to her impairment, she could no longer sew, which was one of
the essential functions of the seamstress position.
The discussion of �qualified� does not, however, end at complainant's
seamstress position. The term �qualified individual with a disability,�
with respect to employment, is defined as a disabled person who, with or
without a reasonable accommodation, can perform the essential functions of
the position held or desired. 29 C.F.R. � 1630.2(m). The term "position"
is not limited to the position held by the employee, but also includes
positions that the employee could have held as a result of reassignment.
Therefore, in determining whether an employee is "qualified," an agency
must look beyond the position which the employee presently encumbers.
Accordingly, the agency should have considered reassignment in this
case. We note that because this case arose prior to June 20, 2002,
the Commission will apply 29 C.F.R. � 1614.203(g), its prior regulation
regarding reassignment.<1>
In the case at hand, it is not clear whether the agency conducted a
search to ascertain whether there were any funded vacant positions
for which complainant was qualified at the same grade or level as her
current position. Agency officials testified that when it was determined
that complainant could not remain in her current position, they looked
into what accommodations were available, but were only able to come up
with a position at a lower grade level.<2> Even assuming, however,
that the agency failed to conduct an adequate search for a funded
vacant position at the same grade level before offering complainant the
downgraded position, the agency's failure to conduct either any search
at all, or a broad enough search, for a new position for complainant
does not, by itself, result in a finding of discrimination. See Key
v. United States Postal Service, EEOC Appeal No. 07A20001 (August 2,
2002); Barnard v. United States Postal Service, EEOC Appeal No. 07A10002
(August 2, 2002). Rather, the record must be examined for evidence that,
had the search been conducted, there would have been an appropriate
vacancy available. Id.
The complainant has an evidentiary burden in such reassignment cases
to establish that it is more likely than not (preponderance of the
evidence) that there were vacancies during the relevant time period
into which complainant could have been reassigned. See Key, supra;
Barnard, supra; see also Hampton v. United States Postal Service,
EEOC Appeal No. 01986308 (August 1, 2002). Clearly, complainant can
establish this by producing evidence of particular vacancies. However,
this is not the only way of meeting complainant's evidentiary burden.
In the alternative, complainant need only show that: (1) he or she was
qualified to perform a job or jobs which existed at the agency, and (2)
that there were trends or patterns of turnover in the relevant jobs so
as to make a vacancy likely during the time period. See Hampton, supra.
Here, complainant failed to meet this burden. In her affidavit, she
argued that she should have been offered a position as a Recreational
Therapist, noting that it was the only position of which she was aware
which she could do well. Complainant testified that she was told that
this position had been eliminated, but argued that she felt the agency
could have �brought it back to accommodate� her. This evidence does not
indicate that the position was a funded vacant one. Complainant also
argued that the agency could have promoted her to a supervisory position
or created a supervisory position for her. However, the Rehabilitation
Act does not require an agency to provide a promotion or create a position
as an accommodation. See EEOC Guidance: Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act (March 1,
1999), at Reassignment. At no point did complainant allege that there
was a funded vacant position at her current grade level for which she
was qualified during the relevant time. Nor did she suggest that there
were trends or patterns of turnover in the relevant jobs so as to make
a vacancy likely during the time period.
Accordingly, as complainant failed to establish that she could perform
the essential functions of the position she held or desired with
or without an accommodation, she failed to establish that she is a
qualified individual with a disability entitled to the protection of
the Rehabilitation Act. The agency's finding of no disability-based
discrimination is therefore AFFIRMED.
Turning to complainant's claims of race and sex discrimination and
retaliation and applying the standards set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), we agree with the agency's determination, as detailed in the FAD,
that complainant failed to establish that she was discriminated against
on the bases of her race, sex or prior EEO activity. In so finding we
note that complainant failed to prove by a preponderance of the evidence
that the agency's actions at issue were motivated by membership in a
protected group, rather than the agency's legitimate business needs
and/or complainant's performance and behavior.
Finally, in regard to complainant's claim of harassment, complainant may
establish a Title VII claim of harassment if the discriminatory conduct
was so severe or pervasive that it created a hostile work environment
on the basis of her race, color, gender, religion, national origin
or retaliation. 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; Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). Here, complainant
did not provide any evidence, other than her own testimony, that the
actions the agency took were motivated by her race, sex or prior EEO
activity. Accordingly, we agree with the agency that complainant failed
to establish that she was subjected to a hostile work environment on
the bases of her membership in a protected group.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
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
March 6, 2003
Date
1 The agency is advised that 29 C.F.R. �
1614.203(g), which governed and limited the obligation of reassignment
in the Federal sector, has been superseded and no longer applies.
67 Fed. Reg. 35732 (5/21/02), to be codified as 29 C.F.R. � 1614.203(b).
The ADA standards apply to all conduct on or after June 20, 2002, and
emphasize, among other things, a broader search for a vacancy. The ADA
regulations regarding reassignment can be found at 29 C.F.R. �� 1630.2(o)
and 1630.9. Additional information can be found in the Appendix to the
ADA regulations and in the EEOC's Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No. 915.002, at Questions 25-31 (rev. October 17, 2002). These
documents are available on the EEOC's website at www.eeoc.gov.
2 The agency noted that complainant would retain her higher-level salary
for a period of two years.