Vernice Oliver, Complainant,v.Hilda L. Solis, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionMay 20, 2009
0120071424 (E.E.O.C. May. 20, 2009)

0120071424

05-20-2009

Vernice Oliver, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.


Vernice Oliver,

Complainant,

v.

Hilda L. Solis,

Secretary,

Department of Labor,

Agency.

Appeal No. 0120071424

Agency No. 0505073

DECISION

On January 18, 2007, complainant filed an appeal from the agency's

December 20, 2006 final decision (FAD) concerning her equal employment

opportunity (EEO) complaint alleging 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(a). For the

following reasons, the Commission AFFIRMS the agency's final decision.

At the time of events giving rise to this complaint, complainant worked

as an GS-7 Equal Opportunity Assistant employed by the U.S. Department

of Labor's Women's Bureau in Chicago, Illinois. On March 17, 2005,

complainant filed an EEO complaint alleging that she was discriminated

against and subjected to a hostile work environment on the bases of race

(Black) and disability (back injury) (1) when she received a November 30,

2004 memorandum on leave usage and procedures; and (2) was subsequently

placed on Absent without Leave (AWOL) status on December 21, 2004,

when she failed to adhere to the terms of the leave memorandum.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). In accordance with

complainant's request, the agency issued a final decision pursuant to

29 C.F.R. � 1614.110(b). The decision concluded that complainant failed

to prove that she was subjected to discrimination as alleged.

The record shows that complainant returned to work on September 1, 2004,

after about three months recuperating from an auto accident. The Regional

Administrator (S1) states that when complainant returned to work she did

not provide any documentation from her doctor regarding any restriction of

duties. S1 gave complainant a memorandum which summarized what occurred

during her absence and outlined various tasks for complainant to begin

immediately upon her return, which included discarding all outdated phone

books, financial reports, and supply catalogs. S1 noted in her memorandum

that she was "mindful about [complainant's] physical strength as [she]

just recovered from [an] injury." Accordingly, S1 advised complainant

not to remove large quantities of documents at one time, but to carry

catalogs one at a time. In addition, S1 advised complainant to place

a dumpster outside her office to make discarding the documents easier.

Moreover, S1 advised complainant that she did not have to complete the

assigned task in one day.

On September 3, 2004, complainant told S1 that she had come back to work

too soon. Thereafter, on September 7, 2004, complainant informed S1 that

she would not be coming to work and requested unpaid Family and Medical

Leave Act (FMLA) leave from September 7-10, 2004. S1 mailed complainant

a memorandum stating that she would provisionally approve her FMLA leave

request pending her submission of a completed leave request form (SF-71)

and a "Certification of Health Care Provider" form. Complainant also

submitted another request for Leave without Pay (LWOP) for September

13-17, 2004. S1 received a Certification of Health Care Provider form

dated September 22, 2004, indicating that complainant would be off work

from September 9-20, 2004, and could return to work on September 21, 2004,

"with light duty which includes no lifting over ten pounds."

S1 stated that complainant continued to have leave issues following her

return to work. For example, the record shows that on September 22, 2004,

complainant requested LWOP for September 23, 2004, which was approved.

On October 1, 2004, complainant requested to retroactively change the

September 23, 2004 LWOP to annual leave; this request was approved.

On October 5, 2004, complainant left a voice message indicating she did

not feel well and would not be in. Complainant did not indicate which

type of leave she was requesting or how long she would be away from

the office. S1 stated that she called complainant to ask what type

of leave complainant had requested and complainant responded that she

was requesting leave under FMLA. After reviewing complainant's leave

balances, S1 discovered that complainant had exhausted her FMLA leave

and approved annual leave for October 5, 2004. At that time, S1 advised

complainant that annual leave was subject to prior approval and in the

future should be requested in advance.

On October 27, 2004, complainant requested leave for November 12,

2004, which S1 approved. On November 16, 2004, complainant called

in and requested annual leave for that day. While S1 approved this

leave request, she advised complainant that she could not continue to

request annual leave unless it was done in advance. On November 22,

2004, complainant called the office and indicated she would not be

at work that day. On November 23, 2004, upon her return to work, she

submitted a request for LWOP for November 22, 2004. Complainant states

that on November 22, 2004, her live-in granddaughter had a seizure and

was taken by ambulance to the hospital. According to complainant, she

was at the hospital until around 7:30 a.m. Complainant further asserts

that she left a voice mail message for S1 around 6:30 a.m. explaining

the circumstances and why she would not be at work that day.

S1 approved LWOP but issued a verbal warning to complainant that she would

no longer approve future requests for annual leave or LWOP without advance

notice. On November 30, 2004, S1 issued a Leave and Usage Procedures

memorandum outlining the proper procedures to follow when requesting

leave. The memorandum noted that complainant had exhausted her FMLA leave

and had an outstanding balance of 189.5 hours of advanced sick leave.

The memorandum explained the conditions of annual leave usage, which

requires approval in advance except in an extreme emergency situation.

Thereafter, complainant requested annual leave, in advance, for December

1, 2004, which S1 approved. Complainant asserts that on December 21,

2004, she could not stand due to back pain. She called S1 and left a voice

message that her back was hurting too much to come to work, and requested

annual leave. S1 alleges she called complainant's home around 10 a.m. and

no one answered the phone. S1 called later that day and complainant's

daughter answered the phone and indicated that complainant was sleeping.

According to complainant, S1 asked her daughter if complainant would

be coming in to work the following day and that this was her chance to

request advanced annual leave. Complainant asserts that she spoke to

S1 later that day, who informed complainant that she would not be able

to grant her annual leave because of the November 30, 2004 memorandum,

and that complainant was being charged with AWOL.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

As a threshold matter, in order for complainant to establish a claim of

disability discrimination, she must establish that she is a "qualified

individual with a disability" within the meaning of the Rehabilitation

Act. An "individual with disability" is a person who has, has a

record of, or is regarded as having a physical or mental impairment

which substantially limits one or more of that person's major life

activities, i.e., caring for oneself, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working. See, 29

C.F.R. � 1630.2(j). A physical or mental 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 a 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 raises claims of disparate treatment and harassment, as well

as a failure to reasonably accommodate her alleged disability. We assume

for the purpose of this decision, without so finding, that complainant

presented sufficient evidence to show that she was a qualified individual

with disability within the meaning of the Rehabilitation Act during the

relevant time-frame.

Reasonable Accommodation

A Federal agency must "make reasonable accommodation for the known

physical or mental limitations" of a qualified employee unless the

agency can demonstrate that the accommodation would impose an undue

hardship on the operation of its program. 29 C.F.R. � 1630.9(a).

Complainant's asserts that she requested a reasonable accommodation after

"unusually harsh work" was assigned to her upon her return to duty.

We find insufficient evidence in the record to prove that complainant

requested any accommodation. However, assuming arguendo, that complainant

requested some unspecified accommodation, the preponderance of the

evidence indicates that complainant was not required to work beyond her

physical limitations or medical restrictions.

Disparate Treatment Claims

To prevail in her disparate treatment claim, complainant must satisfy

the three-part evidentiary scheme fashioned by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally

establish a prima facie case by demonstrating that she was subjected

to an adverse employment action under circumstances that would support

an inference of discrimination. Furnco Construction Co. v. Waters,

438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with

in this case, however, since the agency has articulated legitimate and

nondiscriminatory reasons for its conduct. See United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);

Holley v. Department of Veterans Affairs, EEOC Request No. 05950842

(November 13, 1997). To ultimately prevail, complainant must prove,

by a preponderance of the evidence, that the agency's explanation is

a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of

the Navy, EEOC Request No. 05950351 (December 14, 1995).

S1 explained that complainant was placed on AWOL because she consistently

failed to follow the leave policy. The preponderance of the record shows

that it was common for management to require that requests for annual

leave be made in advance and that requests for extensive sick or FMLA

leave be supported by medical documentation. Moreover, the record does

not support a finding that complainant was treated less favorably than

similarly situated employees outside her protected classes. The record

also does not support a finding that S1 held any type of discriminatory

animus toward complainant. Accordingly, the preponderance of the evidence

does not establish disparate treatment toward complainant.

Harassment Claims

To prevail in her claim of harassment complainant must show that: (1)

she is a member of a statutorily protected class; (2) she was subjected to

harassment in the form of unwelcome verbal or physical conduct involving

the protected class; (3) the harassment complained of was based on the

statutorily protected class; and (4) the harassment affected a term or

condition of employment and/or had the purpose or effect of unreasonably

interfering with the work environment and/or creating an intimidating,

hostile, or offensive work environment. Humphrey v. United States Postal

Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.

The harasser's conduct should be evaluated from the objective viewpoint of

a reasonable person in the victim's circumstances. Enforcement Guidance

on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March

8, 1994). Further, the incidents must have been "sufficiently severe

and pervasive to alter the conditions of complainant's employment and

create an abusive working environment." Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,

Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor,

complainant must also show that there is a basis for imputing liability

to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir

1982).

We find that complainant has not established her claim of hostile work

environment harassment. We note that management demonstrated considerable

flexibility with regard to complainant's leave by granting leave for over

a month following her accident without insisting on medical documentation.

Moreover, complainant was verbally warned several times by S1 that her

practice of calling in to request annual leave or LWOP did not comply

with the leave policy. It is notable that when complainant followed

the leave policy and requested annual leave in advance, it was granted.

We find that management issued the November 30, 2004 memorandum following

a number of instances where complainant failed to ask for leave in

advance despite being warned to do so. On December 21, 2004, when

complainant failed to comply with the leave request procedures outlined

in the memorandum, she was placed on AWOL. We note that rather than

being abusive, S1's actions were a reasonable response to problematic

leave usage. Accordingly, we conclude that complainant has failed to

prove that she was subjected to unlawful harassment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we conclude that

complainant failed to prove by a preponderance of the evidence that

she was subjected to unlawful discrimination as alleged. Accordingly,

we AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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 20, 2009

Date

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0120071424

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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