01a51261
03-10-2006
Evelyn K. Jackson, Complainant, v. Linda M. Springer, Director, Office of Personnel Management, Agency.
Evelyn K. Jackson,
Complainant,
v.
Linda M. Springer,
Director,
Office of Personnel Management,
Agency.
Appeal No. 01A51261
Agency No. 03-11
DECISION
On November 16, 2004, the complainant timely filed an appeal with the
Equal Employment Opportunity Commission (EEOC or Commission) from the
agency's October 13, 2004 final decision (FAD) 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a).
ISSUES PRESENTED
Whether the complainant was discriminated against based on her
disabilities (walking and depression), sex (female), age (born in 1951)
and reprisal for prior protected activity under the Rehabilitation Act
when (1) her parking pass was taken away from her and assigned to another
individual, and (2) she was allegedly insulted at a meeting to discuss
the parking pass.
BACKGROUND
The complainant filed an EEO claim on the above issues. Following an EEO
investigation, the complainant and her attorney were notified of the right
to request a hearing before an EEOC Administrative Judge (AJ). When they
did not do so, the agency issued a FAD finding no discrimination.
At the time of events giving rise to her complaint, the complainant
worked as a Federal Benefits Specialist at the agency's Retirement
Operations Center (ROC) in Boyers, Pennsylvania. The ROC is located
in an underground mine. There is limited parking inside the mine for
individuals with medical restrictions who indicate they need close
parking, managers, and visitors, and parking lots outside the mine.
Parking passes for the first group are assigned to car pools, which
usually have a main and designated back up driver. The drivers and
passengers of the carpools meet in parking lots close to the mine. The
complainant was formerly a member of a carpool where the primary driver
had multiple sclerosis. After the driver retired, the complainant's
request to use the carpool pass to park in the same space within the mine
was granted. The Chief of the Operations Services Branch in the ROC,
who was responsible for administering parking for ROC inside the mine,
stated that he informed the complainant this grant was provisional,
but she denies this.
In August 2002, the pass the complainant was using was reassigned to
co-worker 1 as the primary driver (male, born around 1968, multiple
sclerosis). His supervisor, who reported to the Chief, asked that
co-worker 1 be given a pass. The supervisor explained that co-worker 1
has difficulty getting in and out of vehicles, and uses a walker, and it
took him at least 10 minutes to walk from the carpool parking space in the
mine to his work area, which the Chief stated was a mere 40 to 50 feet
away. The supervisor stated all this difficulty resulted in his being
late to work, and suggested she believed a pass would alleviate this.
The Chief explained that co-worker 1 needs to hold onto the side of his
vehicle for support before getting his walker, that it was particularly
hazardous for him to transfer vehicles when there is snow and ice, and
it was difficult or impossible for him to clean accumulating snow and ice
off his vehicle. The complainant countered that it only took co-worker
1 five minutes to walk the short distance from the parking space inside
the mine to his office, but co-worker 1 stated it took him 10 minutes.
At the complainant's initiation, on August 22, 2002, there was a
meeting between herself, the Chief, the complainant's second level
supervisor, and a union official regarding the complainant's parking
pass being reassigned and her request for reasonable accommodation to
have a parking pass into the mine. At the meeting, the complainant
contended that she needed the pass because of her walking limitation1
and to minimize the time she spent in the mine. She explained that her
depression was aggravated from lack of sunlight, and being better able
to control when she arrived in the mine would ensure that she spent less
time there and got more sunlight. The complainant's shift was from 6:30
a.m. to 3:00 p.m. The complainant wanted to leave the carpool area for
the mine at 6:15 a.m. in the morning.
At the meeting, management offered to have the complainant carpool with
co-worker 1. While he normally left the parking lot at 5:40 to 5:45,
he would delay this to 6:00 a.m. for the complainant. At the meeting,
the complainant asked if she could carpool in with Branch Chief 1,
who arrived at the mine between 6:15 to 6:30. The Chief said he would
look into this. The weight of the evidence indicates there was room
in carpools at half hour increments for the complainant. It was also
suggested that the complainant could take the shuttle bus to the mine.
According to the meeting participants, the complainant rejected this
option on the grounds that she would need a stool to get onto the bus,
which she said was embarrassing. In support of her claim, the complainant
submitted multiple statements. In one, she wrote that the bus dropped
off on a downward slope 30 yards outside the front of the mine, and the
walk to her office in the mine was an additional 350 yards. However,
in another statement the complainant stated that it was approximately
300 feet from the drop off to the "actual OPM agency." The record
does not indicate that the complainant had difficulty leaving the mine
at 3:00 without a carpool pass. Co-worker 1 was scheduled to leave at
3:00, and unlike mornings, in the afternoon the shuttle bus made pick
ups inside the mine. Further, the complainant indicated that prior to
having a pass, she would ride out with "someone" at 3:00.
The complainant contends that she was harassed at the meeting. According
to the complainant, the Chief got enraged during the meeting and pounded
the desk with both his hands, and he and the union official laughed about
the complainant's not wanting to use a stool for the bus but was willing
to use it for a potential ride in a truck. The complainant contended
that she heard them say something about using a crane, a reference to her
weight. The Chief denied banging his hands on the desk. He stated that
he got frustrated when the complainant rejected alternatives to giving her
a pass which he believed were reasonable, and that he told her she wanted
things her way rather than compromising. He denied yelling as alleged,
and stated that he was very business like and direct. The union official
stated that the Chief spoke in a "to the point" and forceful manner,
and did not bang his hands. After this meeting, the complainant did not
return to work. The complainant's second level supervisor stated that
the complainant took early optional retirement on September 11, 2002.
The complainant stated that she retired on disability on February 25,
2003, and the record reflects that her application for it was approved
on that day.
In finding no discrimination, the FAD found that the agency offered
the complainant effective reasonable accommodations, and she rejected
them. It also found that the complainant did not submit medical
documentation showing that having the parking pass was necessary
under the Rehabilitation Act. Regarding her pass being reassigned,
the FAD found that the agency articulated legitimate, nondiscriminatory
reasons for this, and the complainant failed to show they were pretext
to mask discrimination. In finding no discrimination regarding claim 2,
the FAD found that there was no hostile work environment. On appeal,
the complainant argues the merits of her claim and that there was
discrimination.
ANALYSIS AND FINDINGS
For purposes of analysis, we will assume without finding that the
complainant is a qualified individual with disabilities.
An agency must provide reasonable accommodation to the known physical or
mental limitations of qualified applicants or employees with disabilities
unless it can demonstrate that the accommodation would impose an undue
hardship on the operations of its program. 29 C.F.R. � 1630.9(a) &
(b). Reasonable accommodations may include, among other things, job
restructuring, acquisition or modifications of equipment or devices, and
as a last resort reassignment to a funded, vacant position. 29 C.F.R. �
1630.2(o)(2)(ii). An agency is not required to provide the accommodation
of an employee's choice, rather, it must provide only an effective
accommodation. EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, Question 9
(October 17, 2002) (available at www.eeoc.gov.)
Here, the complainant contends that as a reasonable accommodation for
her walking limitation and depression, she needs a parking pass inside
the mine. As alternatives, the agency offered for the complainant to
carpool with co-worker 1, looked into her getting rides with a branch
chief, carpool with others (the next group of carpools arrived at the
mine at 7:00 a.m., several carpool groups left the mine at 3:30 p.m.,
and the record shows the agency would allow a later start time), or take
the bus. The complainant states the agency would not allow an eight
hour a day employee to start on the clock before 6:30 a.m., albeit the
record does not show what it would have done had she submitted specific
medical documentation.
The complainant contends that arriving 15 minutes earlier and being in
the mine that additional time would violate her need for maximum sunlight,
as would arriving at 7:00 a.m. and having less afternoon light. However,
the complainant did not submit medical documentation showing such a small
difference in daily sunlight would impact her depression, despite being
asked to do so. In April 2003, the complainant submitted a letter to the
EEO investigator from her psychiatrist indicating that the complainant
demonstrated better performance with an earlier work schedule that allowed
her to get into and out of the mine as early as possible, and the need
to get daylight was not unusual for people with her psychiatric illness.
This letter, however, was submitted after the complainant retired.2
Further, the complainant's second level supervisor stated that there were
many times the complainant came to work late and walked from the main
parking lot into the mine. According to the second level supervisor,
the complainant indicated that she did not have as much of a problem
walking in the mine as walking out because it was easier for her to walk
down hill. In light of this, and in the absence of medical documentation
tending to refute this, we find that the complainant has not shown taking
the shuttle bus in the morning would be an ineffective accommodation.
The complainant submitted additional documentation on her walking
limitation in April 2003, but this was after she retired.
Accordingly, we find that there was no discrimination regarding the
complainant's reasonable accommodation claim.
The complainant also avers that she was disparately treated and retaliated
against because her pass was given to co-worker 1, who was younger,
male, and had an obvious disability rather than the hidden disability
of depression. The reprisal claim stems from the complainant asking
for a reasonable accommodation.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether she has
demonstrated by preponderance of the evidence that the agency's reasons
for its actions merely were a pretext for discrimination. Id.; see also
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-717 (1983).
Here, the agency explained that it reassigned the complainant's
provisional pass to co-worker 1 because he had a greater need for it.
As the complainant has not shown that this explanation is pretext to
mask discrimination or reprisal, she failed to prove discrimination
regarding this matter.
We now turn to issue 2. It is well-settled that harassment based on an
individual's protected group is actionable. See Meritor Savings Bank
FSB v. Vinson, 477 U.S. 57, 66 (1986). In order to establish a claim
of such harassment, the complainant must prove, by a preponderance of
the evidence, the existence of five elements: (1) that she is a member
of the statutorily protected classes; (2) that she was subjected to
unwelcome conduct related to his membership in those classes; (3)
that the harassment complained of was based on her protected group;
(4) that the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) that there is a basis
for imputing liability to the employer. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 987, 903 (11th Cir. 1982). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. In assessing allegations of
harassment, the Commission examines factors such as the frequency
of the alleged discriminatory conduct, its severity, whether it was
physically threatening or humiliating and if it unreasonably interferes
with an employee's work performance. Harris v. Forklift Systems, Inc.,
510 U.S 17, 23 (1993). Usually, unless the conduct is pervasive and
severe, a single incident, or group of isolated incidents, will not
be regarded as discriminatory harassment. Walker v. Ford Motor Co.,
684 F.2d 1355, 1358 (11th Cir. 1982). For reprisal based harassment,
an individual need not show an effect rising to the level of element
(4) above, rather, she need show that it was reasonably likely to deter
her from engaging in protected activity. EEOC Compliance Manual (new),
Section 8, page 8-14 (May 20, 1998).
While the record shows that the Chief got frustrated in the meeting of
August 22, 2002 with the complainant, it does not show by a preponderance
of the evidence that he banged his hands on a table or desk during
the meeting. The record does not show that the conduct that occurred
at the meeting rose to the level of a hostile working environment or
reasonably likely would deter protected EEO activity.
CONCLUSION
Based upon a review of the record and for the foregoing reasons, the
FAD finding of no discrimination is affirmed.
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
March 10, 2006
__________________
Date
1The record does not reflect what the complainant communicated to agency
officials regarding specific walking limitations she had prior to or at
this time in terms of the distance she could safely walk. She claims that
she should avoid walking and is unstable when walking up and down slopes.
The record does not indicate that she uses a wheelchair or equipment to
assist her with walking. After she retired, the complainant submitted
medical documentation indicating that she can only walk 25 feet without
stopping to rest, can only stand on her feet for 10 minutes, and should
avoid going up and down steps.
2In October 2002, the complainant submitted a letter from her psychiatrist
indicating that the complainant stated she was unable to work according
to her mandated schedule due to increased anxiety caused by being on
the job site longer than previously required. This documentation, which
was submitted after her Special Option Retirement of September 11, 2002,
does not sufficiently address the sunlight issue, and only reports what
the complainant stated regarding this matter.
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01A51261
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
01A51261