0120120005
06-21-2012
Zelma R. Garner, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency.
Zelma R. Garner,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120120005
Agency No. 11-R3-FAS-ZG-01
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 10, 2011, final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supply Technician, GS-05, at the Agency's Eastern Distribution Center, Inventory Surveillance Branch (ISB) in Burlington, New Jersey. On November 30, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment on the bases of race (African-American), disability and age (55) when:
1. Complainant was ordered to unload file cabinets;
2. Complainant was given more difficult assignments than her Caucasian coworker (CW1);
3. Complainant was not given use of a scooter; and
4. Things occurred that made Complainant feel like she was being forced to retire.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision (FAD) pursuant to 29 C.F.R. � 1614.110(b).
In its FAD, the Agency found that Complainant failed to demonstrate that she was harassed and discriminated against as alleged. Initially, the Agency determined that Complainant was a member of a protected class on the bases of her race and age, but not on the basis of disability. The Agency noted that Complainant's testimony was insufficient evidence to establish that she had a disability. Further, the Agency noted that Complainant clarified in her supplemental affidavit that she was not claiming discrimination based on her disability.
The Agency then found that the Complainant did not establish that she was subjected to unwelcome conduct, a necessary element of proving harassment. In response to claim 1, Complainant's Supervisor (S1) testified that the unloading of file cabinets was a "normal function of [Complainant's] job assignments," and that he never ordered Complainant to do the job herself. Further, the Union Representative (UR) testified that S1 never yelled at Complainant when S1, UR, and Complainant confronted each other in the Union office. In response to claim 2, the Agency offered testimony from S1 that he divides assignments according to employee skills and the research and functional tools at each employee's disposal. In response to claim 3, S1 testified that he assigned scooters according to those employees who spent the most time moving around the warehouse. S1 alleged that Complainant did not require full time use of a scooter. In response to claim 4, S1 testified that he never attempted to encourage Complainant to retire, nor did he ever make age-related comments to Complainant. Further, the Agency pointed out that Complainant conceded in her affidavit that S1 did not make any specific remarks to her regarding retirement.
The Agency further found that even if Complainant had articulated a claim of discriminatory harassment, the evidence on record showed that the conduct Complainant claimed of was not unwelcome nor was it sufficiently severe or pervasive to affect her employment or create an abusive working environment. As a result, the Agency concluded that the Complainant had not shown that she was harassed based on race, age, or disability as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she has established a claim of discrimination based age and race when S1 denied her a motorized scooter. Complainant further alleges that she established a prima facie case of discrimination. She argues that she is a member of a protected class by virtue of her race and her age; that the denial of a motorized scooter is a term and condition of her employment; and that CW1, who is both younger and a Caucasian, was treated more favorably than Complainant when CW1 had an assigned scooter. Further, Complainant states that the Agency's alleged reasons for not assigning a motorized scooter to her are pretext for discrimination. The Agency did not submit any arguments on appeal.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
The Commission has the discretion to review only those issues raised specifically on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-10 (November 9, 1999). Accordingly, we decline to address Complainant's allegation of harassment and will only address Complainant's claim regarding the assignment of motorized scooters (claim 3) as a single incident of disparate treatment.
As a preliminary matter, we find that Complainant did not allege that she was subjected to discrimination based on a disability. We note that in Complainant's supplemental affidavit, dated July 27, 2011, she stated: "I am not claiming that I was denied an accommodation or that I was treated differently because of a disability. [S1]'s treatment of me was harassment and this led to workplace stress and more depression." Further, we note that on appeal, Complainant only alleged race and age discrimination with regard to claim 3. Accordingly, we find that Complainant did not allege a claim of disability discrimination and we will not address that basis on appeal.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming that Complainant established a prima facie case of race and age discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the record reveals that, with regard to claim 3, S1 testified that he has 17 employees assigned to him in the ISB - both federal employees and contract workers - but only seven scooters. He stated that he assigned scooters to those employees who spent the most time moving around the warehouse, and Complainant's work assignments did not require full time use of a scooter. Further, he pointed out that Complainant had access to the night supervisor's scooter when she needed it. We find that the Agency has articulated legitimate, nondiscriminatory reasons for not permanently assigning a motorized scooter to Complainant.
The burden now shifts to Complainant to demonstrate that the Agency's proffered reasons were a pretext for discrimination. Complainant states that organization charts in the record show that S1 supervises only seven employees, not seventeen. However, we note that S1 testified to supervising both federal employees and contractors. Complainant further alleges that S1's testimony that he assigned scooters to those employees who spent the most time moving around the warehouse is contradicted by CW1's testimony that she had a scooter even though she worked mostly in the office. Complainant points out that S1 offered no evidence to demonstrate that someone else assigned CW1 a scooter.
We remind Complainant that she bears the burden to prove that the Agency discriminated against her. We find that nothing in the record demonstrates that the Agency's reasons for not permanently assigning Complainant a scooter are not worthy of credence. Complainant offers no evidence beyond her own assertions to prove that Agency's reasons were a pretext for discrimination. Even if CW1 was assigned a scooter, S1 stated that some other individual assigned it to CW1. Further, S1 provided affidavit testimony that he took the scooter away from CW1 when she no longer needed to make trips to the warehouse floor. Another co-worker, CW2, testified that he believed S1's assignment of scooters was equitable, considering the work assignments of individual employees. Complainant has not proffered any evidence to show that this is not the case. Further, Complainant failed to proffer any evidence that the Agency was motivated by unlawful animus. Accordingly, we find that Complainant has failed to demonstrate that the Agency's explanations are a pretext for discrimination.
CONCLUSION
After a review of the record in its entirety and the contentions on appeal, including those not specifically addressed herein, it is the decision of the EEOC to affirm the Agency's final decision. We find that Complainant failed to demonstrate that the preponderance of the evidence of record established that discrimination occurred as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
___6/21/12_______________
Date
2
01-2012-0005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120005