01983005x
02-01-2000
Wanda K. Comstock, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Wanda K. Comstock, )
Complainant, )
) Appeal No. 01983005
v. ) Agency Nos. AR000980134
) AR000980135
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (White), sex (Female), reprisal (prior EEO activity),
and physical and mental disability (carpal tunnel syndrome and
stress/anxiety), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq. and the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791, et seq.<1> The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has established,
by preponderant evidence, that the agency discriminated against her on
the bases of race, sex, reprisal, and disability when she was allegedly
harassed and issued a warning by her first-line supervisor.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a telephone operator, at the agency's Wright-Patterson Air Force Base.
Complainant alleged that her supervisor ridiculed and yelled at her
on a continuous basis with the latest incident occurring on February
18, 1997. Believing she was a victim of disability, racial, and sex
discrimination, complainant sought EEO counseling on February 25, 1997.
Subsequently, she filed a complaint on May 13, 1997. Then, on May 7,
1997, complainant alleged that her first-level supervisor issued her
a notice of consideration of possible disciplinary action based on an
incident on April 28, 1997.<2> Complainant filed a complaint on June
27, 1997 regarding this incident because she felt that her supervisor's
actions were based on reprisal for her prior EEO complaint.
These allegations were consolidated into one investigation. At the
conclusion of the investigation, complainant requested that the agency
issue a final agency decision. The FAD did not make a determination
regarding whether complainant established prima facie cases of racial,
sex, disability, and reprisal discrimination.<3> Therefore, the
FAD first focused on the agency's articulated reason for its actions.
The agency argued that its actions were appropriate due to complainant's
history on insubordination demonstrated against her supervisor. Further,
the agency stated that complainant's inability to accept criticism from
management led to a misunderstanding with her supervisors which resulted
in her complaints. The FAD agreed with the investigator's finding
that management articulated legitimate, nondiscriminatory reasons for
its actions. The focus of the FAD shifted to complainant's burden to
show pretext. Complainant alleged that her supervisor �picked on� female
employees and favored Black employees in order to avoid discrimination
complaints. The FAD found that complainant's allegations regarding her
supervisor's conduct were not supported by the evidence in the record
and in particular, she failed to disprove that her misconduct was the
catalyst for the warning issued by the supervisor. Accordingly, the
FAD found no discrimination based on sex, race, reprisal, or disability
because complainant failed to provide substantive evidence demonstrating
that the agency's actions were motivated by discriminatory animus.
This appeal followed. Complainant fails to raise any new contentions
on appeal.
ANALYSIS AND FINDINGS
Disability Discrimination
Although the agency did not address complainant's prima facie case of
disability discrimination, the Commission finds it appropriate to address
this issue herein.
Complainant must first establish a prima facie case of disparate
treatment disability discrimination by showing that: (1) she is an
individual with a disability, as defined by 29 C.F.R. � 1630.2(g);<4>
(2) she is a qualified individual with a disability pursuant to 29
C.F.R. � 1630.2(m); and (3) she was subjected to an adverse personnel
action under circumstances giving rise to an inference of disability
discrimination. See Prewitt v. United States Postal Service, 662 F.2d
292 (5th Cir. 1981).
We turn now to an examination of complainant's disability claim.
Initially, we must reach a threshold determination as to whether
complainant falls within the protection of the Rehabilitation Act of
1973. One bringing a claim of disability discrimination must first
establish that he is a member of the class of persons protected by the
Rehabilitation Act, i.e., a qualified individual with a disability.
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 an impairment, or (3) is regarded as having
such an impairment. 29 C.F.R. � 1630.2(g). The Commission has defined
"substantially limits" as "[u]nable to perform a major life activity
that the average person in the general population can perform" or
"[s]ignificantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major
life activity." 29 C.F.R. � 1630.2(j)(i) and (ii). Major life activities
include such functions as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. EEOC
Regulation 29 C.F.R. � 1630.2(i).
Upon review of the record, we find that complainant demonstrated that she
has a physical (carpal tunnel syndrome) and mental (anxiety disorder)
impairment.<5> However, whether complainant has impairments and those
impairments affect and substantially limit a major life activity
present separate questions. Based upon the record, the Commission
finds that complainant's impairments do not rise to the level of a
disability that substantially limits a major life activity.<6> Further,
there is no persuasive evidence that complainant has a record of such
substantially limiting impairment. Although, the record indicates that
the agency has provided complainant with a special keyboard at work,
this does not in and of itself indicate that complainant was regarded
as being substantial limited. Therefore, the Commission finds that
complainant failed to show that she is an individual with a disability.
Accordingly, we find that complainant failed to establish a prima facie
case of disability discrimination.
Racial, Sex and Reprisal Discrimination
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Cen. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transp., EEOC Request No. 05900159 (June 28,
1990); Peterson v. Department of Health and Human Serv., EEOC Request
No. 05900467 (June 8, 1990); Washington v. Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
Here, in response to complainant's claims of discrimination, the agency
argued that complainant's allegations of continued ridicule and issuance
of a notice for consideration of disciplinary action by her supervisor
were to correct complainant's insubordination. The Commission finds that
the record supports the agency's argument. Therefore, we find that the
agency has articulated a legitimate, nondiscriminatory reason for its
action.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was a pretext for discrimination.
Complainant attempted to show pretext by arguing that her supervisor
favored male and Black employees.<7> Upon a review of the record, we
find that complainant has failed to show pretext by preponderant evidence.
Therefore, the agency's determination that complainant failed to establish
that she was discriminated against was correct.
CONCLUSION
Therefore, after a careful review of the record, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
Feb. 1, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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:
__________________ ________________________________
1 On 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.
2 On April 28, 1997, complainant alleged that her first-line supervisor
stated that she must have had a field day on the previous Friday because
complainant had allegedly made some negative comments regarding her
supervisor to co-workers while her supervisor was on leave.
3 The agency applied the principals expressed in United States Postal
Serv. Bd. Of Governors v. Aikens, 460 U.S. 711 (1983) (holding that where
management establishes a legitimate nondiscriminatory explanation for
its actions, whether or not complainant establishes a prima facie case
is not relevant) in order to adjudicate these complaints.
4 The 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.
5 See Investigative File, p. 69-73 (physical and mental evaluations
produced by complainant's hand surgeon and clinical neuropsychologist,
respectively).
6 Complainant's surgeon did not note anything remarkable in his report
and noted that she did feel some pain which will improve. Also,
complainant's neuropsychologist stated that complainant indicates a
significant amount of anxiety which was linked to her job but the level
of anxiety did not appear to be substantially limiting one or more major
life activities.
7 Complainant alleged in her affidavit that other employees were
treated differently from her. Complainant alleges that other male, Black
employees were granted early departures while her requests were denied.
See Complainant's Affidavit, p. 4. Another example she offered was that
other males were permitted to eat at their consoles while she was scolded
at by her supervisor for sucking on a candy cane. See Complainant's
Affidavit, pp. 7-8.