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.