0120100710
02-24-2012
Chasidee L. Barocio, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Chasidee L. Barocio,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120100710
Hearing Nos. 550-2008-00161X, 550-2008-00160X
Agency Nos. 2006-20900-FAA-06, 2007-21406-FAA-06
DECISION
On October 5, 2009, Complainant filed an appeal from the Agency’s
September 10, 2005, final order 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency’s final
order which found that Complainant failed to demonstrate that she was
discriminated against as was alleged.
ISSUES PRESENTED
Whether Complainant was subjected to discrimination on the bases of race,
sex, and/or retaliation when during the period of May 2005 to November
2006, she was subjected to a hostile work environment/harassment.
Whether Complainant was subjected to discrimination on the bases
of disability and/or retaliation when she was required to provide
medical documentation in violation of her medical privacy rights and
when the Agency denied her request for a reassignment as a reasonable
accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Air Traffic Controller (ATC). From June 2004 to June 2007, she
worked at the Agency’s Oakland Air Reroute Traffic Control Center
(Oakland Center). Complainant took maternity leave from June 5, 2005,
until October 11, 2005. Upon her return, she worked until April 2007,
and then left work on medical leave. She did not return to the Oakland
Center. In June 2007, she moved to Las Vegas, Nevada and was released
by the Oakland Center to report to work at the Las Vegas Air Traffic
Control Tower on September 1, 2007.
Complainant alleged that she was subjected to harassment and a hostile
work environment while working in the Oakland Center. She maintains
that she was denied the opportunity to attend a training session because
she was pregnant. Complainant also maintains that she was forced to
continue training after she was required to take medication following
a car accident in June 2006. She indicated that she was offended when
her supervisor told her that “you need to get through this girl.”
Complainant asserted that she was treated differently than a male employee
who had been in a car accident. She maintains that the male employee
was told not to worry about training until he recovered while she was
forced to continue training.
Further, Complainant maintains that on July 27, 2006, she was issued
a Memorandum which indicated that according to her training folder
and skills check, she was unsatisfactory in multiple areas, including
“separation, scan, decision making, phraseology and sequencing at
sector R-34.” She was given a skills enhancement plan and assigned
a team of two trainers to assist her. Complainant maintained that the
trainers yelled at her and one of the trainers called her “stupid.”
Complainant’s training lasted from August 29 to September 26, 2006, with
the final evaluation of “needs improvement” in six of 24 categories.
Complainant maintains that during training, the chair that she was sitting
in was hit by her trainer. Complainant requested to be transferred to
another location to complete her training.
On October 9, 2006, Complainant maintained that sexual comments were
made when it was stated that they needed more “eye candy” in the
building because there was not a “looker” in the bunch. Complainant
complained about the “eye candy” comment and soon thereafter, pictures
of her children, which were on a bulletin board with pictures of other
employee’s children, were defaced. Complainant also maintains that
she overheard a comment made by an employee that a black prisoner who
was scheduled to be executed should be given a rope.
In February 2007, Complainant’s request for a reassignment to the Las
Vegas office, so that she could move with her husband who had just been
granted a transfer to a new position, was denied. She was told that
there were no vacant positions available for which she was qualified.
Complainant also maintains that she was subjected to harassment when her
2006 performance appraisal was delayed and when her 2007 performance
plan was unlawfully suspended. On April 18, 2007, following an
internal investigations of her complaints, Complainant, who had been
given administrative duties to perform during the investigation, was
offered a Return to Duty plan which would have returned her to training.
Complainant accepted the plan but on the following day submitted a letter
which indicated that the return to work plan did not accommodate her
medical conditions which Complainant identified as hypertension, major
depression, panic disorder, and paresthesia. Complainant informed
management that she was taking medication that prohibited her from
flying. Management responded to Complainant’s letter by indicating that
the return to work plan was prepared before she provided information that
she was taking prescription medication that temporarily incapacitated
her from performing air traffic control duties and training. The Agency
maintained that although the medical information provided by Complainant
on April 19, 2007, did not meet the criteria for reasonable accommodation,
her request would be granted. Complainant’s medical documentation
was turned over to the Flight Nurse, who agreed that Complainant was not
eligible to fly. The Flight Nurse relayed this information to management.
Thereafter, the Agency offered to keep Complainant in her administrative
position but Complainant requested that she be granted leave or a transfer
to Las Vegas to be with her husband. The Agency approved Complainant’s
leave requests multiple times and she stayed on medical leave until she
began working in Las Vegas.
Complainant filed two EEO complaints which were consolidated alleging
that the Agency discriminated against her on the bases of race
(African-American), sex (female), disability, and reprisal for
prior protected EEO activity when: (1) from May 2005 to November
2006, she was subjected to harassment/hostile work environment.
Complainant also alleged that she was subjected to discrimination on
the bases of disability (hypertension, depression, panic disorder and
parathesia) and/or retaliation when: (2) she was required to provide
medical documentation in violation of her medical privacy rights and
when the Agency denied her request for a reassignment as a reasonable
accommodation.
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). Complainant
timely requested a hearing and the AJ held a hearing on February 10,
2009, and issued a decision on August 26, 2009.
The AJ found that, with respect to complaint 1, Complainant failed
to demonstrate that she was subjected to hostile work environment.
The AJ indicated that with respect to the Agency’s concerns regarding
training, the Agency had a responsibility to ensure that Complainant was
properly trained and that safety was their primary concern. Further,
with regard to the remaining incidents, the AJ found that they were
not severe or pervasive enough to establish a hostile work environment.
The AJ noted the Agency’s explanation that Complainant was not placed in
the October 2005 Radar class because the training manager had been told
that Complainant was expected to be off work for a number of months and
he did not want to schedule her for one of the three spaces available
unless she was going to be back to work by the beginning of October.
Complainant did not return to work until October 11th. Moreover, the
training manager indicated that even if Complainant had returned to
work by the beginning of October and space for the class was available,
Complainant would not have been able to take the class because she had
been off work for more than 120 days. Therefore, she was required to
recertify on the D-44, a radar associate position, before she could take
the Radar class. Complainant was placed in the next available class
which was March 14, 2006.
With respect to Complainant’s training continuing after her car
accident, the AJ noted the Agency’s testimony that Complainant had not
been prescribed a narcotic or other disqualifying medication so therefore
she could continue training. During the hearing, Complainant acknowledged
that a narcotic had not been prescribed. Although Complainant maintained
that a male employee had been treated differently, the record indicated
that, unlike Complainant, he had been prescribed a muscle relaxant which
was a disqualifying medication.
The AJ also noted the supervisor’s denied that he called Complainant
or anyone else a “girl” and the trainers both maintained that they
did not yell or call Complainant “stupid.” One of the trainers
did however admit to tapping Complainant’s chair to get her attention
but maintains that he did not “hit” the chair. The AJ found this
testimony credible. The AJ noted the testimony of both trainers that
Complainant struggled with training especially the R-side training.
They maintained that after 80 to 100 hours of R-side training, she was
still having the problems that someone with only 20 hours of training
would have.
The AJ found, with respect to Complainant’s request to be transferred
to another location for training, that an internal investigation was
conducted; Complainant was assigned administrative duties while her
complaints regarding training, which included the rude behavior of
her trainers, were investigated; and that the investigation found that
Complainant had been trained in a fair and adequate way. Furthermore,
with respect to someone defacing the poster board with Complainant’s
children’s pictures, the AJ noted management’s explanation that all
the pictures of the children were taken down after Complainant bought this
matter to their attention. The supervisor questioned various employees
but was unable to find out what had happened or who was responsible,
and the pictures were returned to the parents. Among other things,
the AJ found that Complainant did not establish that she was subjected
to adverse treatment or conduct related to her EEO activity.
With respect to Complainant’s response to the return to work letter,
the AJ found that the Agency was unaware that Complainant was taking any
medications prior to her letter to them. As a result of the information
provided in the letter, which indicated that Complainant was taking
medication that disqualified her from training, Complainant was allowed to
remain in her administrative detail assignment. Further, the AJ noted the
Agency’s explanation that Complainant’s performance appraisal was not
unduly delayed. The Agency pointed out that several other employees’
appraisals were completed at that same time. The Agency did acknowledged,
however, that the 2007 performance record was incorrectly suspended
and as soon as it was discovered it was released. The AJ found that
Complainant did not establish that she was subjected to adverse treatment.
The AJ also found that Complainant failed to show that she was denied
a reasonable accommodation. According to the AJ, even if Complainant
was an individual with a disability with respect to her depression and
hypertension during the relevant time period, she was not “qualified”
to perform her air traffic control duties while taking medication to
treat one or more of her conditions. The AJ further noted that the
Agency granted Complainant’s requested accommodation to remain in her
detail assignment, but Complainant did not accept this offer. Instead,
she presented documentation from her doctor on April 19, 2007, and
requested an extended period of leave. Her request for medical leave
was granted, and she remained on medical leave until she began a new
job in Las Vegas on or- after September 1, 2007. Based on the above,
the AJ found that Complainant was not denied a reasonable accommodation.
The AJ found that there was no evidence offered to support Complainant’s
assertion that management shared medical information regarding her
condition or that each supervisor required medical documentation.
Finally, the AJ found that although Complainant, on October 19,
2006, was asked to “write-up” her complaints of sexual and racial
discrimination, there was no evidence that it was done in order to stop
her from filing an EEO complaint. The AJ found that Complainant did
not contact an EEO Counselor until October 30, 2006, as such asking her
to write-up her complaint was not done in reprisal for filing an EEO
complaint, as she had not yet contacted an EEO Counselor at that time.
The AJ also find that Complainant offered no evidence which showed that
she had told management that she intended to file an EEO complaint.
The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant limits her arguments to the following: (1) the
AJ’s witness credibility findings were not supported by substantial
evidence, primarily related to reprisal; and (2) that the AJ used too
narrow of a legal standard when considering whether Complainant’s
alleged participation to complaints of discrimination and opposition
to discrimination in the Accountability Board process qualified as a
protected activity.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held.
ANALYSIS AND FINDINGS
With respect to Complainant’s contentions about the AJ’s credibility
determinations, we note that an AJ’s credibility determination based
on the demeanor of a witness or on the tone of voice of a witness will be
accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact
finder would not credit it. See EEOC Management Directive 110, Chapter
9, at § VI.B. (November 9, 1999). Here, we find that Complainant has
not established that the AJ’s credibility determinations should not be
accorded deference. Moreover, we note that even if we assume arguendo
that the internal investigation regarding Complainant’s allegations
could be considered prior EEO activity, we find support for the AJ’s
determination that there was no evidence presented which showed that
Complainant was subjected to adverse treatment as a result of filing
an internal complaint or her actual EEO complaints. Accordingly, we
find that the record supports the AJ’s finding that Complainant did
not establish that discriminatory animus was involved in any of the
Agency’s actions.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final Agency order because
the AJ’s ultimate finding, that unlawful employment discrimination was
not proven by a preponderance of the evidence, is supported by the record.
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
___2/24/12_______________
Date
2
0120100710
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100710