Wanda Silva, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionNov 23, 2009
0120073898 (E.E.O.C. Nov. 23, 2009)

0120073898

11-23-2009

Wanda Silva, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Wanda Silva,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120073898

Hearing No. 451-2007-00096X

Agency No. NRCS-2005-00370

DECISION

On November 1, 2007, complainant filed an appeal from the EEOC

Administrative Judge's (AJ) August 22, 2007 decision without a

hearing concerning her equal employment opportunity (EEO) complaint

alleging employment discrimination in violation of 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 AJ's decision.

ISSUES PRESENTED

Whether the AJ properly issued a decision without a hearing finding that

complainant was not discriminated against or subjected to harassment

because of her disability (Scotopic Sensitivity Syndrome) in violation

of the Rehabilitation Act when: (1) the agency refused to alter or

change complainant's assigned task; (2) the agency asked complainant to

resign when she refused to complete her assigned task; (3) the agency

sent complainant a letter stating that she would be recommended for

termination if she refused to return to work; and (4) on April 12,

2005 the agency terminated complaint's employment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a

part-time Temporary Cartographic Aide, GS-1371-03, in the Robstown, Texas

office of the agency's Natural Resources Conservation Service (NRCS).

Complainant began her employment with the agency on January 15, 2001, on

a two-year appointment, which was extended because of the soil compilation

workload in the office. See AJ S.J. Decision, 8/22/07 at Page 6.

Complainant's primary responsibility was map compilation, a map-making

process that involved accurately transferring map unit boundaries,

symbols, drainage, and cultural features from field sheets to photo base

map overlays. Id. On March 14, 2005, complainant was given a routine

assignment to compile the aerial map transparencies of West Feliciana

Parrish, Louisiana. The transparencies contained soil polygons and a

raster grid underneath the aerial map which complainant alleged made

compilation difficult for her. Id. After working on the map, she alleged

the pattern caused her eye stress and made her jittery. Id.

On March 16, 2005, complainant met with her supervisor and a co-worker

about the West Feliciana Parrish maps and stated that "she [could] not

and [would] not do this work" because the grid on the map hurt her eyes

and caused her headaches. Both complainant's supervisor and co-worker

examined the maps in question and saw a similar effect on the maps, which

was not uncommon to either of them. Id. at 6-7. They showed complainant

how to properly adjust the maps to eliminate the checkered effect from

the map because the grid cannot be removed from the maps.

After the meeting, complainant's supervisor made several inquiries to

determine if anything had been done differently with the West Feliciana

Parrish maps, and to determine if there were any other map projects

available for complainant to complete. After being informed that no

changes had been made to the maps assigned to complainant and that there

were no other projects for her to complete, complainant's supervisor

met with her again. The supervisor informed complainant that he was

instructed by management that if she refused to complete her assignment,

the agency could not use her services. He subsequently requested that

complainant complete her assignment and complainant again refused. He

told her that if she would not complete the assignment, she would

have to resign because the agency could not keep her employed unless

she completed the assignments that she was hired to do. Id. at 7.

Unable to reach a resolution, the supervisor informed complainant

that he was going to request that she be terminated and asked that she

leave any NRCS materials in her possession and not return to work. Id.

Complainant left the office the same day and did not return or contact

management regarding the status of her temporary position. Id.

On March 29, 2005, the agency sent complainant a letter instructing her

to return to work on Monday, April 4, 2005, or face termination. Id.

Complainant neither returned to work nor tendered a response to the letter

by the April 4, 2005, deadline. Complainant contended that she saw an

eye doctor on March 28, 2005, but did not request a letter from this

physician regarding her alleged condition until Tuesday, April 5, 2005.

Id. at 8. On March 31, 2005, complainant contacted the agency's EEO

office to file an informal complaint. Id. Complainant stated that she

did not receive the agency's March 29, 2005 letter until April 5, 2005,

and did not respond to the letter until April 8, 2005. On April 8, 2005,

complainant faxed her physician's letter, dated April 7, 2005, to the

supervisor. He forwarded it to the State office, which was processing

complainant's termination. Id.

On June 23, 2005, complainant filed an EEO complaint alleging that she was

subjected to harassment and discrimination on the basis of her disability

(Scotopic Sensitivity Syndrome) when:

1. The agency failed or refused to provide complainant with reasonable

accommodations, upon request, to enable her to complete the assigned

task;

2. The agency refused to remove the raster grids on the soil compilation

maps assigned to complainant;

3. Complainant's supervisor requested that she resign from her position

after she refused to complete the assigned task;

4. The agency sent a letter to complainant stating that her failure to

return to work would lead to a recommendation of termination; and

5. On April 12, 2005 the agency terminated complainant's employment.

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 AJ. Complainant timely requested a hearing.

When the complainant did not object, the AJ assigned to the case granted

the agency's July 27, 2007 motion for a decision without a hearing and

issued a decision without a hearing on August 22, 2007. When the agency

failed to issue a final order within forty days of receipt of the AJ's

decision, the AJ's decision finding that complainant failed to prove

that she was subjected to discrimination as alleged became the agency's

final action pursuant to 29 C.F.R. � 1614.109(i).

The AJ's decision found that the agency sustained its burden of

demonstrating that there was no genuine dispute of the material facts

of the case and that there were not any genuine issues concerning

credibility. Further the AJ found that the agency demonstrated that the

undisputed material facts of the case and the applicable law entitled

the agency to judgment as a matter of law. The AJ also found that

complainant failed to demonstrate by the preponderance of the evidence

that she was discriminated against, as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant argues that the AJ based his decision on false

information provided by the agency. She requests that her case be

reviewed by a new AJ as well as be handled by a new lawyer for the

agency.1

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ's legal and

factual conclusions, and the agency's final order adopting them, de novo.

See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from

an agency's final action shall be based on a de novo review . . ."); see

also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)

(providing that an administrative judge's "decision to issue a decision

without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed

de novo"). This essentially means that we should look at this case

with fresh eyes. In other words, we are free to accept (if accurate)

or reject (if erroneous) the AJ's, and agency's, factual conclusions and

legal analysis - including on the ultimate fact of whether intentional

discrimination occurred, and on the legal issue of whether any federal

employment discrimination statute was violated. See id. at Chapter 9,

� VI.A. (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").

Summary Judgment

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. The Commission's

regulations allow an AJ to issue a decision without a hearing when

he or she finds that there is no genuine issue of material fact.

29 C.F.R. � 1614.109(g). This regulation is patterned after the summary

judgment procedure set forth in Rule 56 of the Federal Rules of Civil

Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exists

no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, an AJ should not rule in favor of one party without holding

a hearing unless he or she ensures that the party opposing the ruling

is given (1) ample notice of the proposal to issue a decision without

a hearing, (2) a comprehensive statement of the allegedly undisputed

material facts, (3) the opportunity to respond to such a statement, and

(4) the chance to engage in discovery before responding, if necessary.

According to the Supreme Court, Rule 56 itself precludes summary

judgment "where the [party opposing summary judgment] has not had the

opportunity to discover information that is essential to his opposition."

Anderson, 477 U.S. at 250. In the hearing context, this means that the

administrative judge must enable the parties to engage in the amount

of discovery necessary to properly respond to any motion for a decision

without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

After a review of the record, we find that there are no genuine issues

of material fact or any credibility issues which required a hearing

and therefore the AJ's issuance of a decision without a hearing was

appropriate. The record has been adequately developed, complainant

was given notice of the agency's motion to issue a decision without

a hearing, she was given an opportunity to respond to the motion, she

was given a comprehensive statement of undisputed facts, and she had the

opportunity to engage in discovery. See Agency's Motion, June 25, 2005.

Under these circumstances, we find that the AJ's decision without a

hearing was appropriate.

Disparate Treatment

In analyzing a disparate treatment claim under the Rehabilitation Act,

where the agency denies that its decisions were motivated by complainant's

disability and there is no direct evidence of discrimination, we apply

the burden-shifting method of proof set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village

Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68

(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).

Under this analysis, in order to establish a prima facie case, complainant

must demonstrate that: (1) he is an "individual with a disability"; (2)

he is "qualified" for the position held or desired; (3) he was subjected

to an adverse employment action; and (4) the circumstances surrounding

the adverse action give rise to an inference of discrimination.

Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden

of production then shifts to the agency to articulate a legitimate,

non-discriminatory reason for the adverse employment action. In order

to satisfy his burden of proof, complainant must then demonstrate by a

preponderance of the evidence that the agency's proffered reason is a

pretext for disability discrimination. Id.

Assuming, arguendo, that complainant is a qualified individual with

a disability, pursuant to the Rehabilitation Act, we find that the

agency articulated a legitimate, non-discriminatory reason for the

adverse employment action. The record indicates that agency management

engaged in several discussions with complainant and amongst themselves

regarding complainant's circumstances. In each of these discussions,

it was agreed that the agency could not continue to employ complainant if

she refused to complete assigned tasks. There was never any discussion of

complaint having a disability, the agency's unwillingness to accommodate

complainant's disability, or terminate complainant as a result of

a disability. The record reflects that, at the time of these events,

complainant's superiors were unaware that complainant may have been a

person with a disability.

Although complainant had not established that she had a disability, her

supervisor attempted to show complainant methods to utilize in order to

minimize the visual effect of the gridlines on the maps, as well as seek

out other map projects without the gridlines for complainant to work on.

Complainant refused to utilize the proposed methods and complete the

assigned task. Further, even after complainant left work never to return,

management contacted her on several occasions seeking her return, and

advised her that if she did not respond or return by a specified date,

she would be terminated.

We find that these are not actions which indicate any attempt on the

part of the agency to discriminate against complainant because of a

disability. Complainant failed to respond to these requests, and the

agency was left with no alternative but to terminate complainant for

failure to complete her assigned task and, ultimately, constructively

resigning from her position.

Reasonable Accommodation

Under the Commission's regulations, an agency is required to make

reasonable accommodation to the known physical and mental limitations of

a qualified individual with a disability unless the agency can show that

accommodation would cause undue hardship. See 29 C.F.R. � 1630. Reasonable

accommodation includes modifications to the manner in which a position

is customarily performed in order to enable a qualified individual with a

disability to perform the essential job functions. In order to establish

that complainant was denied a reasonable accommodation, complainant must

show that: (1) he is an individual with a disability, as defined by 29

C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability

pursuant to 29 C.F.R. � 1630.2(m); and (3) the agency failed to provide a

reasonable accommodation absent undue hardship. See Enforcement Guidance;

Reasonable Accommodation and Undue Hardship under the Americans with

Disabilities Act, Notice No. 915.002 (October 17, 2002).

The Commission determines that nothing in the record supports a

finding that complainant's alleged disability motivated the agency's

actions. To the extent that complainant claims she was denied a reasonable

accommodation, we determine that complainant has not shown that she

requested accommodation or that the agency was or should have been aware

that reasonable accommodation was necessary in order for complainant to

successfully perform the work for which she had been hired.

Harassment

Complainant alleges that she was subjected to a hostile work environment

and harassment. Harassment of an employee that would not occur but

for the employee's race, color, sex, national origin, age, disability,

or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139

(D.C. Cir. 1985). A single incident or group of isolated incidents

will not be regarded as discriminatory harassment unless the conduct is

severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).

Whether the harassment is sufficiently severe to trigger a violation

must be determined by looking at all the circumstances, including the

frequency of the discriminatory conduct, its severity, whether it is

physically threatening or humiliating, or a mere offensive utterance, and

whether it unreasonably interferes with an employee's work performance.

Harris v. Forklift Systems, 510 U.S. 17 (1993).

To establish a prima facie case of hostile work environment 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.

We find that complainant failed to establish a prima facie case of

harassment. As stated previously, complainant has not established that

the agency's actions in this case were motivated by discriminatory

animus. Even assuming, arguendo, that complainant had established

a prima facie case of discrimination and the agency had failed to

demonstrate a legitimate, non-discriminatory reason for its actions,

the actions of the supervisors in this case do not rise to the level

of actionable harassment. Complainant improperly seeks to classify

standard supervisory directives and management as harassing behavior

without establishing that any of the actions taken by the agency were

motivated by discriminatory animus. See Oakley v. United States Postal

Service, EEOC Appeal No. 01982923 (September 21, 2000).

CONCLUSION

Based on a thorough review of the record, including all the statements

submitted on appeal, it is the decision of the Commission to affirm the

AJ's final order. The AJ's decision without a hearing was appropriate

and a preponderance of the record evidence viewed in the light most

favorable to the complainant does not establish that discrimination or

harassment occurred.

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

November 23, 2009

Date

1 Complainant maintains that a review of specific maps, contact with the

cartographer prior to herself, and a review of the note provided by her

doctor will prove that the information provided by NRCS was false.

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2

0120073898

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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