0120113067
06-19-2012
Ester Medina-Gibbs, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Ester Medina-Gibbs,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120113067
Agency No. 1005071
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 9, 2011 final decision 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-7 Wage and Hour Investigator in the Agency's Wage and Hour Division (WHD) in Indianapolis, Indiana.
On May 4, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to hostile workplace discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII when:
(1) Beginning on July 8, 2009, she sought workplace accommodations in connection with her pregnancy. Specifically, according to Complainant, the District Director (DD) responded to Complainant's request to lie down during breaks by stating that, "[she] could lie down in the courthouse bathroom or [she] could walk 2-3 blocks to the federal building and lie down in the health center." Complainant also alleged that the DDalso told Complainant that she could not approve flexi-place on a regular basis, and that Complainant "must be in the office [or] at an employer's establishment, [and] that [taking] leave or [requesting] episodic flexi-place [was] not to be used for [Complainant's] ... convenience or everyday."
(2) On November 24, 2009 and January 15, 2010, she requested training made available to new hires, but did not receive the opportunity.
(3) On August 31, 2009, upon returning to the office from the field, she was spoken to in a derogatory manner by the Assistant District Director (ADD).
(4) On September 22, 2009, she was spoken to in a derogatory manner by the ADD regarding her signature on a time-sheet after Complainant had explained that she had not, as of yet, started her work day at the office.
(5) On October 7, 2009, at a weekly training meeting, the DD singled her out and noted that the meetings were intentionally set for her benefit, as she was still a trainee until attaining the GS-12 level.
(6) On October 21, 2009, when she requested that the ADD delay giving her more work before she received information regarding her work restrictions from her physician and informed him that she had a 30-minute driving restriction, he stated that "if she could not be in the field then she could not be [sic] an investigator."
(7) On October 28, 2009, when she asked management if she could provide technical assistance and help other Senior Investigators with their cases as opposed to doing field work, Complainant's request was denied.
(8) On October 28, 2009, when she requested a surge protector to alleviate the need to bend down to plug in her laptop at work, her request was approved by management, yet Complainant did not receive the equipment on a permanent basis.
(9) On November 4, 2009, after the DD had sent an e-mail on October 27, 2009, directing that Complainant would be able to use the office parking space due to her pregnancy, Complainant arrived at work to discover that the ADD was parked in the space and was instructed to find somewhere else to park.
(10) On December 9, 2009, she learned that she would not be promoted to the GS-9 grade level.
(11) On December 9, 2009, the DD denied Complainant's request to be accommodated due to her pregnancy.
(12) On December 9, 2009, management assigned her four new cases, including one where she was on prison release, causing Complainant great stress and anxiety.
(13) Beginning in April 2010, upon return from her pregnancy leave, management repeatedly expressed concerns regarding her work product.
(14) On May 17, 2010, the DD asked her about her work product while in the restroom.
(15) On May 17, 2010, in response to her statement that she has a family in which to consider, the DD questioned her regarding her duty hours and her need to leave work to pick up her son from daycare, stating: "Let me be very clear, your job is first, your work comes first..."; "Everyone does..."; and "What if l need you here, or need you to work on the weekends?"
(16) Management hindered her ability to be prepared to undergo an advanced training program (Basic II).
(17) On May 19, 2010, during a monthly telephone conference with co-workers in attendance, the DD said, "[Complainant is] looking to go to Basic II...it is not automatic or a race."
(18) On May 23, 2010, the ADD requested that she e-mail him a weekly itinerary on Fridays before leaving work.
(19) On August 16, 2010, she was terminated from the Agency after having been put on administrative leave on July 27, 2010.
(20) Since August 17, 2010, the Agency has caused a delay in her receipt of unemployment benefits by failing to verify her past wages from the Agency.
(21) On October 20, 2010, she learned that she was not selected for another position due to a negative employment reference made by the Agency.
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). As Complainant failed to request either a hearing or final decision, the Agency issued a final decision in this matter.
In its final decision, the Agency found no discrimination. The Agency determined that, even if Complainant could establish a prima facie case, management had recited legitimate, nondiscriminatory reasons for its actions in statements provided during the investigation into her complaint.
Specifically the Agency noted that concerning Complainant's claims of being denied training opportunities, management had responded that Complainant was provided case conciliation training, and with respect to Basic II training, Complainant did not complete the requisite reading materials and case assignments in order to take this advanced course.
Regarding Complainant's claims of not being provided workplace accommodations because of her pregnancy, the DD stated she received doctor's notes from Complainant's physician requesting a number of accommodations: (1) that Complainant should work two days per week in the office and three at home with no weekend work because Complainant "requires periods to lay down with her feet up, requiring two fifteen minutes breaks and one thirty minutes break every four hours to rest;" and (2) that Complainant limit the weight she carried to no more than 15-20 pounds, limit her walking to no more than one block at a time, and to travel no more than 30 minutes in the car at a time. The doctor indicated that the limitations were expected to continue for the duration of Complainant's pregnancy and through her maternity leave.
The DD requested an evaluation of Complainant's accommodation requests by a physician at the Public Health Service (PHS). On November 24, 2009, the PHS physician issued an assessment on Complainant's requested accommodations. The DD stated that, on December 9, 2009, she met with Complainant to discuss a memorandum she issued the same day which denied Complainant's specific requests. The DD explained that she had a conversation with the PHS physician on December 1, 2009, and was informed by the physician that Complainant was experiencing a "normal pregnancy" which was "not high risk." Additionally, the DD explained that the physician told her that "other than the usual restriction of not using stomach/back muscles, and staying within a 30 minute drive from medical care," Complainant possessed neither limitations nor required accommodations. The DD stated that, although no accommodation was necessary for Complainant to perform the essential functions of her position, she and the ADD made efforts to accommodate Complainant throughout her pregnancy, including allowing frequent flexi-place. On occasion, the ADD helped Complainant carry her briefcase info the office and retrieved case files for her. Additionally, Complainant was reassigned from an investigation which required more than 30 minutes of travel and was accompanied to another investigation where she was concerned for her safety around participants in a work-release program. The DD asserted that she was aware of only one request which was not granted - the purchase of a rolling briefcase. She noted that she offered to purchase a less expensive rolling luggage cart for Complainant and later learned that Complainant had acquired a rolling briefcase from another investigator. The DD further noted that she suggested alternative accommodations for Complainant, including elevating her feet at work by lying down on couches in the restrooms in the office building or at the Federal Occupational Health Unit which is located in a building close to the office. She stated that on July 29, 2009, she talked with Complainant about "splitting" her day so that she could lie down and rest and eat at home. The DD further stated that she told Complainant that it could be accomplished without diminishing leave through the accumulation of credit hours. According to the DD, Complainant was "unreceptive" to the suggestion because she could not afford to pay for parking at the office and wanted to save her leave for a vacation. Complainant had stated that she wanted to work from home in part because she wanted to use the speaker phone when conducting interviews. The DD explained that she suggested to Complainant that she could use the speaker phone in the conference room, but Complainant was not receptive to this suggestion and stated that her chair at home was more comfortable. The DD noted that the Agency purchased a headset for Complainant's use.
The ADD confirmed that at a meeting on December 9, 2009, the DD told Complainant that she was not granting Complainant the accommodations recommended by her doctor. The ADD further stated that he and the DD consulted with the PHS physician, who advised them that Complainant's requests were not necessary for her to perform the essential duties of her position, that she had a normal pregnancy, and that she could go to work and do normal activities. The ADD noted that, although the PHS physician determined that an accommodation was not necessary for Complainant, the following things were done for her: a) Complainant's request to not participate in an agricultural investigation was granted; b) from the time Complainant's doctor suggested that Complainant work two (2) days in the office and three (3) days at home with no weekends, Complainant's request for episodic flexi-place was granted on at least thirty-nine (39) occasions through mid-January of 2010, and only two (2) requests were denied (one (1) being when Complainant was required to return technical assistance phone calls from the District Office and the other when she was required to attend the monthly District Office Conference Call); c) a telephone headset was provided for Complainant's use in the District Office at Complainant's request; d) the ADD personally met Complainant at her vehicle to bring her briefcase into the office after Complainant requested assistance; e) after Complainant's doctor suggested she not drive a vehicle for more than thirty (30) minutes, Complainant was removed from a particular case assignment that would have required ninety (90) minutes of driving; f) Complainant was provided with someone to accompany her on onsite visits for an investigation involving convicts in a work release program after Complainant expressed that she was concerned about her safety; and g) after Complainant requested an expensive rolling briefcase be provided to her, the DD offered to purchase a less expensive rolling luggage cart.
Concerning Complainant not being promoted, the DD stated that Complainant was not ready to work under less supervision, had not demonstrated that she understood and could apply basic concepts of law and did not follow direction well. Regarding Complainant being placed on administrative leave and terminated from her position based on her pregnancy and in reprisal for filing an EEO complaint, the DD denied Complainant's allegations and stated that despite numerous training sessions, counseling, and time on the job, Complainant failed to perform her job duties satisfactorily. As further evidence that Complainant's performance did not improve, the DD stated that Complainant's case files disclosed substantive errors in calculating back wages, misapplication of law, and found issues of non-compliance that were not addressed or explained in her narratives. The DD also stated that issues concerning individual coverage were incorrectly cited in files of several investigations performed by Complainant, and despite repeated explanation, Complainant failed to grasp fundamental concepts necessary for success as an investigator. According to the DD, it was these deficiencies, not her pregnancy or EEO activity, that culminated in the Agency's decision to place Complainant on administrative leave and ultimately, not to convert her internship into a career appointment. Moreover, Agency witnesses stated that Complainant's appointment through the Federal Career Internship Program did not guarantee that she would be retained as a federal employee at the conclusion of the internship.
With respect to Complainant's claims that the Agency delayed her unemployment insurance benefits and provided a negative employment reference, the Agency maintained that neither of these claims has any merit. The DD stated that she promptly forwarded the e-mail from the state unemployment insurance office representative to the Agency's Director of Regional Operations (DROP). The DROP representative similarly stated that she promptly addressed the request, but a State representative told her that Complainant had not properly applied for unemployment benefits. An e-mail correspondence in the record verifies this statement.
Finally, both the ADD and the DD deny they were ever contacted concerning an employment reference for Complainant, and the record contains no other evidence that anyone else at the Agency was contacted.
The Agency found that the remaining events of which Complainant complains, either individually or collectively fail to rise to the level of unlawful harassment prohibited by Title VII.
The instant appeal from Complainant followed.
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").
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
Here, Complainant asserted that based on her statutorily protected classes, management continuously subjected her to a hostile work environment. However, we find that Complainant has not shown that she was subjected to harassment in the form of unwelcome verbal or physical conduct involving her protected classes, or the harassment complained of was based on her statutorily protected classes. Further, Complainant has not shown that the purported harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. While Complainant has cited various incidents where Agency management took actions that were either adverse or disruptive to her, we find that Complainant fails to show that these incidents were as a result of unlawful discrimination. In addition, the record reflects that Complainant was provided with adequate workplace accommodations during her pregnancy.
To the extent Complainant is alleging disparate treatment with respect to her claims, including her termination, during the investigation into her claims, Agency management witnesses articulated legitimate, non-discriminatory reasons for the actions taken, which Complainant has failed to prove, by a preponderance of the evidence, were a pretext for discrimination.
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 Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
June 19, 2012
__________________
Date
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0120113067
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113067