01A35037
12-02-2004
Teressia Smith, Complainant, v. Alphonso Jackson, Secretary, Department of Housing & Urban Development, Agency.
Teressia Smith v. Department of Housing & Urban Development
01A35037
12-02-04
.
Teressia Smith,
Complainant,
v.
Alphonso Jackson,
Secretary,
Department of Housing & Urban Development,
Agency.
Appeal No. 01A35037
Agency No. FW-00-09
Hearing No. 310-A1-5479X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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 order.
The record reveals that complainant, a GS-12 Enforcement Analyst at
the agency's Fort Worth, Texas facility filed a formal EEO complaint on
March 9, 2000, alleging that the agency had discriminated against her
on the bases of race (African-American), sex (female), and disability
(leg swelling and tingling caused by venous thrombus) when:
(1) Her request for a reasonable accommodation and hardship transfer
to the Dallas, Texas office was denied while a similarly situated white
male was afforded an accommodation.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ found that complainant failed to establish a prima facie case of
race or sex discrimination because she failed to present any evidence
from which discriminatory intent could be inferred. The AJ further found
that complainant failed to establish a prima facie case of disability
discrimination because she failed to show that she was an individual
with a disability within the meaning of the Rehabilitation Act and
as a result, the agency had no obligation to provide complainant an
accommodation. Even assuming arguendo, that complainant established
a prima facie case of discrimination, the AJ found that the agency
articulated legitimate nondiscriminatory reasons for its actions which
were not shown to be pretextual.
The agency's final order implemented the AJ's decision and this appeal
followed. On appeal, complainant argues that she was denied reasonable
accommodations in violation of the Rehabilitation Act. In response,
the agency argues that the AJ's findings are supported by substantial
evidence in the record and requests that we affirm its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case<1>,
following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether the complainant
has demonstrated by a preponderance of the evidence that the agency's
reasons for its actions merely were a pretext for discrimination. Id.;
see also United States Postal Service Board of Governors v. Aikens,
450 U.S. 711-717(1983).
We find that the agency articulated legitimate nondiscriminatory reasons
for its actions, which complainant failed to show were pretextual. The
record evidence shows that complainant accepted a position as Enforcement
Analyst in the Enforcement Center of the agency's Fort Worth, Texas
facility after her position in the agency's Dallas office was transferred
to another office as part of an agency wide reorganization. Shortly
after reporting to work in the Fort Worth office complainant requested
a reassignment back to the Dallas office citing medical problems caused
by her daily commute from her home to Fort Worth, Texas. Specifically,
complainant alleged that she suffered swelling and tingling in her legs
and provided medical documentation which suggested that driving long
distances could aggravate her condition. Although the documentation was
not sufficient to determine whether complainant was an individual with a
disability, to meet complainant's personal needs, the agency investigated
whether there were vacant positions in the Dallas office. Finding that
there were none, the agency denied complainant's request to transfer
to Dallas.
Complainant also requested to be allowed to participate in the telecommute
program and work from home. The agency articulated that the Enforcement
Center was a new organization which at the time did not participate in
the telecommute program because of the nature of the work, the system
and training requirements and the team concept.<2> The agency further
articulated that when complainant transferred to the Enforcement Analyst
position in Fort Worth, she had little experience with multifamily
properties and needed to be in the Fort Worth office to work with her
mentor. The agency also articulated that the new computer systems used
by employees crashed constantly during that time and was difficult to use
from a remote site. For these reasons, the agency denied complainant's
request to participate in the telecommute program.
Six vacant positions became available in the Dallas office and complainant
requested a hardship transfer to one of these positions. However, these
positions were GS-13's and complainant was a GS-12. The agency denied
complainant's request for a hardship transfer.
We find that complainant failed to prove, that more likely than
not, the agency's articulated reasons were pretext for unlawful
discrimination. The AJ found, and we agree, that complainant failed to
identify any similarly situated employees not in her protected groups
who were treated more favorably and failed to present any other evidence
from which a reasonable inference could be made that the agency's actions
were motivated by unlawful discrimination. The employees who complainant
alleged were treated more favorably than she, were not similarly situated
and/or were not outside of complainant's protected groups.
Complainant identified a GS-13 Enforcement Analyst (white male, no know
disabilities) who she alleged was treated more favorably with regard
to reassignment. However, we find that this employee was not similarly
situated to complainant. Unlike complainant, this employee was a GS-13
Enforcement Analyst. Like complainant, the employee accepted a transfer
to the Fort Worth office as part of an agency wide reorganization. Before
the employee was due to report to work in Fort Worth, the agency granted
the employee's request to temporarily remain in the Rhode Island office
where he was physically stationed because of a medical and personal
situation. At the completion of the temporary stay, however, the agency
denied the employee's request for a personal hardship reassignment
to the Rhode Island office and ordered the employee to report to the
Fort Worth office or risk adverse action up to and including removal.
Subsequently, the employee applied for, and was transferred to, a vacant
position in the Rhode Island office. There is no evidence that complainant
requested a temporary stay in the Dallas office before reporting to work
in the Fort Worth office and no evidence that complainant requested
a transfer to the Rhode Island office. Moreover, the agency denied a
hardship transfer to complainant and this employee. It was only after
a vacant GS-13 position became available in the Rhode Island office,
that the employee was permitted to transfer to that office.
Complainant further claimed that she was treated less favorably than
two other employees with regard to telecommuting. We find that these
two employees (African American, female, no known disabilities) were not
treated differently under similar circumstances and were not outside of
complainant's racial and gender groups. The record evidence shows that
these employees were allowed to participate in the telecommute program
and work at home on a temporary, short period term basis due to medical
conditions. One employee was allowed to work from home for two days
because of a medical condition and the other employee was allowed to work
from home for two weeks because of a medical condition. Complainant,
on the other hand, requested to participate in the telecommute
program permanently, not on an episodic basis and hence, was not
treated differently under relatively similar circumstances. Moreover,
complainant's contention that she was treated less favorably than these
employees because of her race or sex fails because like complainant,
these employees were African American female. Complainant presented no
persuasive evidence that the involved management officials harbored a
discriminatory animus toward her membership in a protected group and
failed to prove that more likely than not, the agency's articulated
reasons were motivated by unlawful discrimination.
We further find that complainant failed to prove that the agency failed
to reasonably accommodate her by not reassigning her to a position
in Dallas. The agency articulated that there were no vacant positions
in the Dallas office to which complainant qualified for reassignment
and complainant failed to present any persuasive evidence to refute
the agency's claim. The six vacancies that complainant identified in
the Dallas office were GS-13 positions and complainant was a GS-12.
The Rehabilitation Act does not require that agencies create new positions
or move employees from their jobs in order to create a vacancy. See
Policy Guidance on Executive Order 13164: Establishing Procedures
to Facilitate the Provision of Reasonable Accommodation (October 20,
2000); Kubik v Department of Transportation, EEOC Appeal No. 01973801
(July 9, 2001). Nor is an agency obligated under the Rehabilitation Act
to promote an individual as part of a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, No. 915.002, p. 40 (March 1, 1999).
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 order.
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
___12-02-04_______________
Date
1 For the purpose of this analysis, we also assume, without finding,
that complainant is an individual with a disability in that she has a
physical impairment that substantially limits one or more major life
activities. See 29 C.F.R.� 1630.2 (g)(1).
2 When the office began to participate in the telecommute program at a
later date, the agency articulated that complainant did not request to
participate. Complainant did not refute the agency's contention.