0120073947
03-18-2010
Cheryl Mabry, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
\
Cheryl Mabry,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120073947
Agency No. 060724F
DECISION
On September 5, 2007, complainant filed an appeal from the agency's August
6, 2007 final decision 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. For the following reasons, the Commission AFFIRMS
the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Program Analyst, GS-13 at the agency's Small Business/Self Employed
unit at the agency's Lanham, Maryland facility. On March 7, 2006,
complainant filed an EEO complaint alleging that she was subjected to a
hostile work environment on the basis of her disability (anxiety) when:
1. on August 3, 2005, complainant requested that she be assigned
to a different workspace as a reasonable accommodation, and in response
to her request management used undue pressure to force her to hastily
choose a seating assignment;
2. on January 11, 2006, management denied complainant's reasonable
accommodation request that her workspace be relocated.1
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 Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b). The decision concluded that complainant failed to
prove that she was subjected to discrimination as alleged. Specifically,
the FAD found that complainant failed to show that the agency did not
provide her with a reasonable accommodation, and that complainant failed
to show that she was subjected to a hostile work environment on the basis
of her disability. On appeal, complainant reiterates her contention
that she was subjected to unlawful disability discrimination.
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 EEOC Management
Directive 110, 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").
Under the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodations for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)
and (p).
To establish that complainant was improperly 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. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002)
("Enforcement Guidance").
Here, we find that, assuming without finding that complainant is a
qualified individual with a disability, she has not shown that the
agency failed to provide her with a reasonable accommodation. The record
shows that on or about June 8, 2005, complainant contacted the agency's
Employee Resource Center to request a reasonable accommodation and was
informed by the Reasonable Accommodation Coordinator (RAC) that she
would need to provide medical documentation to support her request.
(Report of Investigation, Exhibit 4). Complainant provided the agency
with a letter from her physician, dated August 1, 2005, stating that
she "requires a quiet sheltered work station." (R.O.I., Exhibit 5).
Complainant met with her supervisor and the RAC on August 3, 2005,
to discuss reassignment to a workspace commensurate with her medical
documentation. (R.O.I., Exhibit 4). Complainant was out on extended sick
leave during this period, however she was offered the choice of several
vacant workspaces and, by email dated November 18, 2005, complainant
informed her supervisor that she had selected a workspace. (R.O.I.,
Exhibit 36). The record contains no evidence to support complainant's
contention that management used undue pressure to force her to make a
hasty decision regarding her work station selection.
We also find that complainant failed to show that the agency denied
her reasonable accommodation request of January 11, 2006. The record
reflects that on January 6, 2006, complainant approached her supervisor
to once again request that her work space be moved. (R.O.I., Exhibit
6). Complainant was again contacted by the RAC and complainant was
provided with a choice of vacant workspaces, one of which she accepted.
(R.O.I., Exhibit 9). The record shows that complainant was out
on extended sick leave during this period as well, and returned to
work at the end of February 2006. (R.O.I., Exhibit 4). Furthermore,
complainant has not shown any of her work stations to which she moved per
her request violated her medical restrictions. Accordingly, we find that
complainant has not shown that the agency failed to meet its burden under
the Rehabilitation Act to provide her with a reasonable accommodation.
Finally, to the extent complainant is alleging that the agency's actions
constituted a hostile work environment, we note that 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 generally 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 (1993). Here, we find that
complainant has proffered no evidence to support her contention that
the agency's actions at issue, i.e., assigning her certain workspaces,
were sufficiently severe or pervasive to rise to the level of a hostile
work environment.
CONCLUSION
The agency's final decision is AFFIRMED.
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
March 18, 2010
__________________
Date
1 In her complaint, complainant also alleged that she was subjected to
unlawful disability discrimination when: (1) on an unspecified date(s),
management changed complainant's work assignments without notice; (2) on
an unspecified date(s), complainant's manager (M1) had another employee
prepare complainant's 2004 performance appraisal, refused to include
self-assessment for the 2005 rating period, and recertified an evaluation
that did not accurately reflect the complainant's responsibilities
and accomplishments for the 2005 rating period; and (3) in June 2004,
on June 3, 2005, and on September 9, 2005, complainant was asked to
evaluate CTRS training for course development, but management did not
allow her to participate in implementing the training video for managers.
By letter dated September 5, 2006, the agency dismissed these claims for
untimeliness. As complainant does not raise the issue of the dismissal
on appeal, we shall not address it in the instant decision.
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0120073947
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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