Cecilia E. Holloman, Complainant,v.Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionAug 10, 2005
01a42878 (E.E.O.C. Aug. 10, 2005)

01a42878

08-10-2005

Cecilia E. Holloman, Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.


Cecilia E. Holloman v. Department of Housing and Urban Development

01A42878

August 10, 2005

.

Cecilia E. Holloman,

Complainant,

v.

Alphonso Jackson,

Secretary,

Department of Housing and Urban Development,

Agency.

Appeal No. 01A42878

Agency No. NY 01-03

Hearing No. 160-A2-8465X

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.

The record reflects that complainant held an agency position as Community

Builder, GS-13, at the agency's Buffalo Area Office in Buffalo, New York.

The record further reflects that complainant has various physical

conditions (allergic rhinitis; asthma; and �reactive airways� syndrome).

On January 16, 2001, complainant submitted a request for reasonable

accommodation requesting that she be allowed either to telecommute or to

work from her house. By letter dated April 25, 2001, an agency physician

recommended that complainant be provided with an office space that had

no dust collecting fabric, such as carpeting or cloth cubicle dividers.

The agency physician further recommended that complainant be given

a portable HEPA air filter to use in her work area. The physician

stated that if complainant was unable to tolerate a full workweek in the

office, she should then be allowed to work one or two days a week in the

office. The physician further stated that if none of the recommended

accommodations were sufficient to reduce complainant's asthma to an

acceptable level, then complainant should be allowed to work out of her

home, as much as feasible for her position.

On August 2, 2001, the Senior Community Builder sent complainant a

letter offering her a reasonable accommodation to work in a dust-free

workspace with a HEPA filter, devoid of fabric dividers, carpets and

other dust-catching materials in accordance with the recommendations of

the agency physician and complainant's physician. The record reveals

that complainant rejected the agency's reasonable accommodation offer.

On August 7, 2001, complainant filed the instant EEO complaint. Therein,

complainant claimed that the agency discriminated against her on

the bases of race (African-American), disability (allergic rhinitis;

asthma; and "reactive airways" syndrome), and in reprisal for prior

EEO activity when:

since February 2, 2001, the Senior Community Builder created a hostile

work environment by harassing her on a continuous basis.<1>

On December 31, 2001, the agency sent complainant a letter regarding the

offer of an accommodation as identified on August 2, 2001. The agency

indicated that if complainant did not accept the accommodation, the Office

of Workers Compensation (OWCP) would be notified and that, depending upon

the actions of OWCP, complainant could be removed from agency employment.

By letter dated January 2, 2002, complainant rejected the agency's

accommodation offer. Complainant stated that the agency's offer did

not meet her medical requirements and that she should be permitted to

work at home, or in a �safe, clean and healthy environment.�

By letter to the agency dated January 3, 2002, complainant requested that

the instant complaint be amended to include two claims of discrimination

on the bases of race, disability and in reprisal for prior EEO activity

when:

her request for an effective reasonable accommodation to work from home

was denied when other employees, primarily white, some with disabilities,

were permitted to work from home; and

in an agency letter dated December 31, 2001, complainant was offered

an accommodation that was unsatisfactory.

By letter dated January 20, 2002, the agency informed complainant that it

accepted the two reasonable accommodation claims for investigation, along

with the harassment claim originally raised in the formal complaint..

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). The agency thereafter filed a motion for summary judgment or

in the alternative, an Agency's Motion for a Decision Without a Hearing

pursuant to 29 C.F.R. � 1614.109.<2>

On February 5, 2004, the AJ issued a decision without a hearing,

finding no discrimination. The AJ concluded that complainant failed to

establish a prima facie case of race discrimination because complainant

did not demonstrate a similarly situated individual not in her protected

class was treated more favorably under similar circumstances. As to

complainant's reprisal claim, the AJ concluded that complainant failed

to establish a prima facie case of reprisal discrimination because she

was not subjected to any adverse action.

As to complainant's disability claim, the AJ determined that complainant

established that she was an individual with a disability under the

Rehabilitation Act. However, the AJ found that complainant refused

to cooperate with the agency concerning her reasonable accommodation

request. Specifically, the AJ found that the agency acted in good

faith by attempting to accommodation complainant's medical condition

but that complainant made no attempts to work with the accommodation

offered by the agency. The AJ also noted that the record reflects that

the agency's August 2, 2001 offer was the initiation of initiatives to

accommodate complainant's medical condition and the agency physician's

letter showed the agency was willing to explore other options if the

August 2, 2001 accommodation did not alleviate complainant's problems.

The AJ noted that a reasonable accommodation is not �what the complainant

wants, but whether it is effective.� Further, the AJ stated that because

complainant rejected the agency's reasonable accommodation offer, there

was no way of knowing if the accommodation would have been effective.

As to complainant's hostile work environment claim, the AJ found that

complainant did not establish that she was subjected to a hostile work

environment, because the purported discriminatory actions did not rise

to the level of actionable harassment under the regulations.

The agency issued a final order on March 3, 2004, implementing the AJ's

decision finding no discrimination.

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, 322-323 (1986); Oliver v. Digital

Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is

�material� if it has the potential to affect the outcome of a case.

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

judgment is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider summary

judgment only upon a determination that the record has been adequately

developed for summary disposition.

Reasonable Accommodation

As an initial matter, the Commission notes that the AJ determined that

complainant is a qualified individual with a disability. The Commission

determines that there is sufficient evidence of record supporting this

finding, which is not in dispute. Moreover, even if the evidence of

record could not support such a finding, the Commission would have

presumed for purposes of analysis only, that complainant is a qualified

individual with a disability.

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

reasonable accommodation to the known physical and mental limitations of

an otherwise qualified individual with a disability unless the agency can

show that accommodation would cause an undue hardship. See 29 C.F.R. �

1630.9. The employee must show a nexus between the disabling condition

and the requested accommodation. See Hampton v. United States Postal

Service, EEOC Appeal No. 01986308 (July 31, 2002).

The Commission finds that the agency attempted in good faith to provide

complainant a reasonable accommodation, but that complainant rejected

the agency's reasonable accommodation offer on the grounds that it did

not meet her medical requirements. We note the record reflects that

after rejecting the agency's offer, complainant requested to work from

home or in a safe and clean environment.

The record reflects that the Senior Community Builder, who was also

complainant's first-level supervisor (Supervisor), stated that he

handled complainant's request for reasonable accommodation "with all

due diligence and as expeditiously as possible." The Supervisor further

stated that after receiving complainant's January 16, 2001 request for

reasonable accommodation, he contacted an EEO/Labor Relations Specialist

(Specialist) at the agency's Chicago facility after being instructed

by the agency Secretary's Representative "to get further advice on the

procedures to be followed in connection with [Complainant's] request."

The Supervisor stated that on February 6, 2001, he had a conversation with

the Specialist by phone and was informed that complainant's request would

be reviewed. The Supervisor stated that the Specialist also informed him

that complainant had contacted her, and that she informed complainant

that a review of her request could possibly take up to six months.

The Supervisor stated that according to the Specialist, complainant

stated that the period of time would create a financial hardship on her.

The Supervisor stated that the Specialist then assured complainant that

she would expedite the review of her request. The Supervisor stated that

on February 7, 2001, he received an e-mail from the Specialist inquiring

if there was any work-at-home assignments that complainant might be

given to allow her to collect her pay. The Supervisor stated that he

informed the Specialist that there was a departmental policy that all

Community Builders "were specifically excluded from telework privileges."

The Supervisor stated that the Acting Assistant Deputy for Field Policy

and Management reaffirmed the departmental policy that excluded Community

Builders from telework.

The Supervisor stated that the following two months after receiving

complainant's January 2001 reasonable accommodation request, there was

"an on-going exchange of information from me to [Complainant] detailing

specific instructions on what the procedures were and what information was

needed from [Complainant's] doctors." The Supervisor stated that during

the relevant period, he reassigned complainant to the Storefront office

on the first floor because she complained that the conditions near her

workspace made breathing difficult. The Supervisor stated that during

complainant's work in the Buffalo Field office, she had meetings at the

Storefront office, and did not complain "about any breathing problems

during that period so I believed the Storefront would alleviate some of

her problems." The Supervisor, however, stated that complainant left

the first day of her reassignment to the Storefront office, complaining

of respiratory problems. The Supervisor stated that other employees

started questioning him concerning complainant's whereabouts because she

was "rarely" seen in the Storefront office. The Supervisor stated that

he later learned complainant had decided to report to the5th floor of

the office building instead of the Storefront office without consulting

with him beforehand. The Supervisor stated "this same 5th Floor space

was where [Complainant] alleged she encountered the most respiratory

problems." Further, the Supervisor stated that during the relevant

period, complainant received maximum amount of advanced sick leave.

The Supervisor stated that on April 25, 2001, he received a letter from

the agency's physician. The Supervisor stated that in his letter,

the physician stated that after a review of complainant's medical

documentation, he recommended that complainant be offered an office

space devoid of all fabric dividers, carpet together with a HEPA filter.

The Supervisor stated that the physician also advised that if complainant

was unable to tolerate a full week in the office, then she should attempt

to report to work one or two days a week and that if that was not feasible

he recommended that complainant work out of her home as much as feasible

for her position. The Supervisor stated that on September 18, 2001,

he received a letter from complainant's allergist in which he made the

same recommendation as the physician. The Supervisor stated that the

Acting Assistant Deputy for Field Policy and Management was the deciding

official concerning complainant's request, and approved the physician's

and complainant's allergist recommendations that complainant be offered an

office space with no dust collecting fabric and cloth cubicle dividers;

and a portable HEPA air filter. The Supervisor stated that "the

recommended space was made available for occupancy on August 2, 2001,

the day [Complainant's] leave was to expire." The Supervisor stated

that complainant rejected the agency's reasonable accommodation offer.

With respect to complainant's assertion that another employee was

allowed to work from home as part of his reasonable accommodation,

the Supervisor stated that he was aware that the named employee "was

granted conditions different than those offered to [Complainant]."

Specifically, the Supervisor stated that the named employee was not a

Community Builder, and that he (the Supervisor) did not have anything to

do with either the employee's request or the accommodation offered to him.

The record further reflects that the agency physician stated that he

contacted complainant's physician and that "all he could tell me is

that [Complainant's] asthma was worse when she was in the building."

The agency physician stated "what you do in these cases is to start

somewhere in terms of limits, and see how the individual is impacted."

Specifically, the agency physician stated in his April 25, 2001 letter,

that if his recommendations were not sufficient in reducing complainant's

asthma, then she should be allowed to work from her home "if possible

within the context of her job."

Considering the entire record as reflected above, the Commission

determines that the AJ properly found that complainant was not denied

a reasonable acccommodation.

Disparate Treatment

The Commission determines that there is sufficent evidence of record to

support the AJ's finding that complainant was not the victim of unlawful

employment discrimination in regard to the alleged bases. The AJ noted

that complainant claimed that white employees without disabilities

telecommute. However, the AJ determined that Community Builders are

excluded from telecommuting, based on agency policy, and that there are

no reasonably situated employees who are treated more favorably than

complainant on this matter. Regarding the basis of reprisal, the AJ

determined that the actions taken against complainant were not �in any

way� connected to either her EEO activity with outside groups or her

firs contacting an EEO Counselor in May 2001 on the instant case.�

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, if it is sufficiently patterned or pervasive. Wibstad v. United

States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998)

(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).

It is also well-settled that harassment based on an individual's prior

EEO activity is actionable. Roberts v. Department of Transportation,

EEOC Appeal No. 01970727 (September 15, 2000). 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 of Title VII must be determined by looking at all of

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, Inc., 510

U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,

Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Harassment is

actionable only if the harassment to which the complainant has been

subjected was sufficiently severe or pervasive to alter the conditions

of the complainant's employment. Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). The harassers' 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).

The Commission determines that complainant failed to establish that she

was subjected to a hostile work environment. We find that complainant has

not shown that the actions alleged were sufficiently severe or pervasive

as to constitute hostile work environment harassment.

After a careful review of the record, the Commission determines that the

AJ properly found summary judgment in this case, and AFFIRMS the agency's

final order implementing the AJ's decision finding no discrimination.

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

August 10, 2005

__________________

Date

1The record reveals that between January and May 2001, complainant was

in and out of work based on her medical condition. The record further

reveals that in May 2001, complainant left work and has not returned

thereafter.

2The record does not contain the agency's Motion for a Decision Without

a Hearing pursuant to 29 C.F.R. � 1614.109.