0120122482
11-16-2012
Clarissa G. Grissett, Complainant, v. Karen G. Mills, Administrator, Small Business Administration, Agency.
Clarissa G. Grissett,
Complainant,
v.
Karen G. Mills,
Administrator,
Small Business Administration,
Agency.
Appeal No. 0120122482
Hearing No. 430-2011-00240X
Agency No. SBA0610048
DECISION
On May 16, 2012, Complainant filed an appeal from the Agency's April 12, 2012, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issue presented on appeal is whether there is substantial evidence in the record to support the EEOC Administrative Judges (AJ's) finding that Complainant failed to establish that she was discriminated against on the bases of, sex (female), disability, and reprisal (prior EEO activity), and subjected to harassment when: (1) from May 3, 2010 through June 2, 2010 she was suspended from work; (2) her June 2, 2010 request for a desk audit was ignored, and two Caucasian males were subsequently promoted; and (3) since about June 2010, her request for a reasonable accommodation has been ignored.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Business Development Specialist at the Agency's South Carolina District Office in the Business Development Division in North Charleston, SC. The record reflects the following: on or around March 12, 2010, the Deputy District Director ("Deputy") proposed that Complainant be suspended from her position for 30 days for Failure to Properly Request Leave and for Absence Without Leave. Complainant alleges that on the day in question there was a thunder storm and it was raining heavily so she called into the office and advised her Supervisor that she would not be in the office for the day because of the weather conditions. Complainant left a message for the Deputy that she would not be reporting for work because "it was raining and [she] heard some thunder." The Deputy District Director called Complainant for clarification of her message. When they spoke, the Deputy advised Complainant that they would discuss the matter once Complainant returned to the office for duty. When she returned to the office, Complainant met with the Deputy who advised her that she was upset that Complainant had not reported to work the previous day. Complainant submitted a leave request, which the Deputy subsequently denied and subsequently proposed her suspension by letter dated March 12, 2010.
On or around June 2, 2010, Complainant requested a desk audit for her position. Complainant states she requested the desk audit because she was in a GS-9 position with no potential for promotion, and she wanted to determine whether or not she was performing higher graded work as she suspected. Complainant, states that the Deputy informed her on June 11, 2010 that her request had been sent to the Office of Human Capital Management, however, as of the date of her investigative interview for the instant complaint, she had not heard anything. Complainant states that she feels the desk audit would have resulted in her receiving a promotion as she had been promoted through a desk audit before. On June 14, 2012 appropriate Agency personnel were emailing regarding Complainant's desk audit request. Her audit was assigned, and action items on how to proceed on the audit were provided.
Sometime around November 6, 2009, Complainant began engaging the Deputy in discussions regarding her depression and possible need for some sort of accommodation. Complainant alleges that she asked if her portfolio firms could be cut from 22 to 11. Complainant states that a decision regarding her request was never made and she eventually asked the Deputy District Director to forward her request to a committee because she felt she was simply "beating around the bush," since the Deputy never suggested an alternative accommodation. Complainant states the Committee sent her a decision letter dated September 27, 2010, and informed her that they could not reduce her portfolio. The record reflects that on November 13, 2009, the Deputy requested the Complainant provide her with more information to assist her in making a determination regarding Complainant's request for an accommodation. Complainant submitted a response to this request on January 5, 2010. On March 5, 2010, and again on March 31, 2010, the Deputy sent Complainant another letter requesting medical documentation. By letter dated July 1, 2010, the Deputy informed Complainant of the reasonable accommodations which were approved for her based on her provided documentation. Complainant again contested this decision and by letter dated September 27, 2010, she was advised of the Agency's final decision on her request for reasonable accommodation.
On August 2, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), disability (depression and anxiety), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 as stated in the statement of Issues Presented above. 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 March 8, 2012, and issued an oral decision on March 9, 2012 finding that in light of the documentary and testimonial evidence presented, Complainant failed to establish that she was subjected to unlawful discrimination, based upon her sex, disability, or prior EEO activity.
Specifically, the AJ held that Complainant's allegation that her request for a desk audit was ignored while white males were promoted was incongruent. The AJ opined that Complainant failed to proffer evidence that other employees requested desk audits and they were granted. Additionally, the AJ found that Complainant's request for a reasonable accommodation was not ignored. The AJ held that numerous attempts were made by the Deputy to acquire additional and pertinent information regarding Complainant's accommodation request. With respect to Complainant's allegation that she was issued a 30 day suspension in retaliation for prior EEO activity, the AJ held that credible testimony and evidence was presented on behalf of the Agency that demonstrated that Complainant had a history of abusing her leave.
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 requests that the Commission reverse the AJ's bench decision, as well as, the Agency's order adopting the AJ's decision. Complainant contends that she established a prima facie case based on retaliation, and met the burden of establishing that the Agency's actions were motivated by discriminatory animus. The Agency has not submitted any response to Complainant's appeal.
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. 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).
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII, or Rehabilitation Act case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256. 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Failure to Accommodate
An agency is required to make reasonable accommodations 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. 29 C.F.R. � 1630.9. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. Enforcement Guidance - Reasonable Accommodation. The Rehabilitation Act prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630.
Upon a complainant's request for reasonable accommodation, an employer may require that documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. See EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Number 915.002, Question 6, (as revised Oct. 17, 2002). When an employee's disability or need for an accommodation is not known or obvious, an employer may ask an employee for reasonable documentation about his or her disability, limitations, and accommodation requirements. See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, (July 27, 2000) (web version) at 14.
A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). "[T]he word 'accommodation' ... conveys the need for effectiveness." Id. "An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Enforcement Guidance - Reasonable Accommodation.
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and reprisal, that she is a qualified individual with a disability pursuant to the Rehabilitation Act, and that she established a prima facie cases of discrimination based on disability, we find that there is substantial evidence in the record to support a finding that the Agency successfully articulated a legitimate, non-discriminatory reason for: (1) its decision to suspend Complainant for 30 days for Failure to Properly Request Leave; (2) not completing Complainant's request for a desk audit by June 10, 2010; and (3) declining to cut Complainant's workload in half as an accommodation. Additionally, we find that Complainant failed to demonstrate that any conduct on the part of the Agency was based in discriminatory animus.
Complainant had been previously, and on multiple occasions, disciplined for her conduct with respect to her leave. The Agency presented ample evidence that the progressive discipline model used as an attempt to correct Complainant's behavior regarding her use of leave was ineffective. The record reflects that Complainant requested the desk audit on or around June 2, 2010, and that by June 14, 2010 Complainant's request was assigned, along with directions for completing it. Complainant has not demonstrated any significant delay which could be attributed to discriminatory animus on the part of the Agency in handling this request.
With respect to Complainant's request for a reasonable accommodation we find substantial evidence in the record to support the AJ's finding that the Agency took appropriate steps to engage Complainant in the interactive process in order to determine her entitlement for an accommodation. Additionally, the record reflects that Complainant was provided an effective, reasonable accommodation that took into account the information provided by her counselor, and medical documentation. The record reflects a series of emails from the Deputy to Complainant, as well as, communications between the Deputy and Complainant's Therapist attempting to clarify the nature of Complainant's condition and what type of an accommodation would be most appropriate. An employer may ask an individual for reasonable documentation about that person's disability and functional limitations when the disability or need for accommodation is not obvious. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) at 12-13.
Harassment
With respect to any contention of Complainant that she was subject to a hostile work environment with respect to the matters set forth in her complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order
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
___11/16/12_______________
Date
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0120122482
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122482