01a51678
02-03-2006
Sarah L. Reeb, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Sarah L. Reeb v. Department of Agriculture
01A51678
February 3, 2006
.
Sarah L. Reeb,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A51678
Agency No. 000044, 000758, 020178
DECISION
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 complainant sought EEO counseling and subsequently
filed three formal complaints alleging that she was discriminated
against on the bases of disability (depression, chemical sensitivity)
and reprisal for prior EEO activity when:
(1) she was forced to accept a reassignment to Carson National
Forest, Camino Real Ranger District, or face termination of her
workers'compensation benefits (Complaint No. 00044);
(2) she received a letter of reprimand (Complaint No. 000758); and
(3) she was subjected to harassment which created a hostile work
environment and was denied reasonable accommodation when people in her
office deliberately wore strong perfume, she had to use sick leave
because of a reaction to perfume, management did not tell people to
stop wearing perfume, she had to use her sick leave and annual leave
when she was told not to come to work even though she requested
administrative leave, and her request to work at home was denied
(Complaint No. 020178).
At the conclusion of the investigation, complainant was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, but then withdrew the request and asked
that the agency issue a final decision.
In its FAD, the agency concluded that complainant was not discriminated
against regarding her reassignment (Complaint No. 00044) and the reprimand
(Complaint No. 000758). However, the agency did find that complainant
was discriminated against and harassed based on her disability and in
reprisal for requesting reasonable accommodation (Complaint No. 020178).
On appeal, complainant did not present any arguments. She states she
is not appealing the agency's decision to find no discrimination in
Complaint No. 000758. The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health
for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999)
(analyzing a disparate treatment claim under the Rehabilitation Act)
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 find the agency's
conclusion that complainant failed to show that she was discriminated
against when she was reassigned is supported by the record. The record
indicates that complainant was out from work while on workers'
compensation. When it was determined that she could return to work,
she was offered several positions which she turned down. Assuming that
complainant is a person with a disability, complainant is not necessarily
entitled to her accommodation or placement in the position of choice. We
need not address the issue of complainant's reprimand since she has
indicated that she is not appealing that claim. We also find no reason
to disturb the agency's findings in Complaint No. 020178 that complainant
was subjected to harassment and disability discrimination.
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 agency's final
decision. The agency is directed to take remedial actions in accordance
with this decision and Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action to the extent
it has not already done so:
1. The agency shall restore any annual leave and/or sick leave the
complainant used during the period between October 19, 2001 and February
8, 2002, when she was not allowed to report for duty..
2. The agency shall ensure that complainant is reasonably accommodated,
including but not limited to, a work place which meets the needs of her
condition, including consideration of allowing her to work at home or
at some other location when conditions exist that might aggravate her
medical condition. The agency shall engage in an interactive process
with complainant to determine what her current disability-related needs
are and how they can best be reasonably accommodated.
3. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of her right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support
of her claim for compensatory damages within forty-five (45) calendar
days of the date complainant receives the agency's notice. The agency
shall complete the investigation on the claim for compensatory damages
within forty-five (45) calendar days of the date the agency receives
complainant's claim for compensatory damages. Thereafter, the agency
shall process the claim in accordance with 29 C.F.R. � 1614.108(f).
4. The agency shall take corrective, curative, and preventative actions
to ensure that violations of federal EEO law will not recur, including,
but not limited to, providing training in employment discrimination
law for the agency officials involved in the decision not to select
complainant. The Commission does not consider training to be a
disciplinary action.
5. The agency shall consider taking appropriate disciplinary action
against the responsible management official. The Commission does not
consider training to be disciplinary action as noted above. The agency
shall report its decision to the compliance officer. If the agency
decides to take disciplinary action, it shall identify the action taken.
If the agency decides not to take disciplinary action, it shall
set forth the reason(s) for its decision not to impose discipline.
If the responsible management official has left the agency's employ,
the agency shall furnish documentation of their departure date.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Carson National Forest, Penasco, New
Mexico location copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
February 3, 2006
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which
found that a violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has occurred
at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The United States Department of Agriculture, Forest Service, Carson
National Forest, supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The United States Department of Agriculture, Forest Service, Carson
National Forest, has been ordered to remedy an employee affected by the
Commission's finding that the agency discriminated against her. As a
remedy for the discrimination, the agency was ordered, among other things,
to restore used annual and sick leave, provide reasonable accommodation,
provide evidence of compensatory damages. The United States Department
of Agriculture, Forest Service, Carson National Forest, will ensure that
officials responsible for personnel decisions and terms and conditions of
employment will abide by the requirements of all Federal equal employment
opportunity laws.
The United States Department of Agriculture, Forest Service, Carson
National Forest, will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 1614