0120111092
04-12-2012
Marcia A. Lurensky, Complainant, v. Jon Wellinghoff, Chairman, Federal Energy Regulatory Commission, Agency.
Marcia A. Lurensky,
Complainant,
v.
Jon Wellinghoff,
Chairman,
Federal Energy Regulatory Commission,
Agency.
Appeal No. 0120111092
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 3, 2009, dismissing her complaint of unlawful
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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Trial Attorney with the Agency’s Office of Administrative
Litigation (OAL) facility in Washington, DC. On February 25, 2009,
she filed a formal complaint alleging that the Agency subjected her
to discrimination and harassment on the bases of disability (multiple
disabilities including cardiomyopathy, chronic congestive heart failure,
disabling psoriasis with arthritis, degenerative joint disease, and
a number of orthopedic conditions, including multiple fractures) and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 Section 501 of the Rehabilitation Act of 1973 when:
1. with regard to advanced sick leave (ASL):
a. the Agency delayed until December 2008 to respond to her September
2008 and October 2008 requests;
b. she was instructed in November 2008 to provide medical documentation;
c. the Agency’s response dated December 5, 2008, only authorized ASL
with conditions; and
d. the Agency’s response indicated “this arrangement does not
constitute a determination regarding any alleged disability or any legal
obligation to accommodate any alleged disability;” and
2. her access to one of two entrances to the Agency’s building was
impeded during the holiday season starting on December 5, 2008, by large
holiday garlands on the handrails.
In an October 2008, Complainant sent an email to Agency management
that the statute on ASL provides for a maximum of 30 days for a serious
disability or ailment, but the Agency’s policy adds the requirement that
the absence must be expected to last at least 24 hours. Complainant wrote
that she needed ASL for shorter periods, and elaborated in November 2008
that her disabilities require multiple medical appointments, self care
at home, and so forth. Complainant did not request ASL for any specific
dates. On December 5, 2008, the OAL Director replied that while FERC
policy on ASL required an absence of three consecutive workdays, he would
consider and approve requests for ASL to attend medical appointments if
Complainant submitted a leave request and medical documentation indicating
she received medical care and the date of the care for each ASL request
through the end of the leave year, January 3, 2009. The Director
wrote that he would also consider requests for ASL for illness-related
reasons that do not require a medical appointment during the same period.
He wrote each request would be approved or disapproved on a case by case
basis, and concluded with the language in claim 1.d.
The Agency dismissed claim 1 for failure to state a claim, finding
Complainant was not harmed. 29 C.F.R. § 1614.107(a)(1). It reasoned
that she did not allege she was denied ASL for any specific day or time,
nor claim the Agency’s actions resulted in any leave without pay.
The Agency also dismissed claim 1 as a proposal to take a personnel
action or other preliminary step to doing so since the December 5, 2008
reply merely instructed Complainant on how to proceed with ASL requests.
On claim 2, Complainant sent a series of emails complaining about the
garlands. On December 5, 2008, she sent an email that the garlands on
the handrails leading to the lobby entrance (First Street) precluded
her from holding onto the rail with her right hand and leaning to
right. She wrote that she was able to use the unadorned hand rail
for non-Federal employees, but once inside had to shuffle with effort
sideways to get around a stanchion to gain entry.1 On December 11, 2008,
Complainant sent another email that she was using the Pavilion entrance
to avoid the obstructions caused by the garlands on the handrails to
the lobby entrance, but because it was raining that day she used the
lobby entrance. She wrote that a lobby security officer assisted her
in entering the building. She sent another email on December 18, 2008,
again complaining about the garlands and thanking a security officer for
assisting her with the lobby entrance that day. Complainant sent another
email on December 23, 2008, that when she entered the lobby after using
the unadorned handrail, a security guard yelled indicating she should
not go to the magnetometer, mistakenly not realizing she was going to
veer to the side to get around the stanchion.
The Agency dismissed claim 2 for failure to state a claim, finding
Complainant was not harmed. It reasoned that she admitted in her
complaint that she used an available unadorned handrail at the same
entrance.
On appeal, Complainant indicates that she was harmed by having to worry
about getting ASL in the event her regular leave was depleted. On claim
2, Complainant reiterates what she claimed before. She also submits
a declaration indicating that on occasion she was admonished by lobby
security for using the area with the unadorned rail and the lobby near the
magnetometer and x-ray equipment, saying she impeded access by the public.
In opposition to Complainant’s appeal the Agency reiterates the findings
it made below. On claim 1, the Agency adds that the delay in responding
to Complainant, absent some injury, was not an adverse personnel action,
and she was not harmed by the request for medical information. On claim
2, the Agency adds that there is also a Pavilion entrance, the second main
entrance to the building, which is a designated disabled access entrance
since it has direct access from the driveway with automatic doors,
and does not have any stairs. The Agency writes that Complainant’s
office and the Pavilion entrance are both located on the West side
of the building, so she must pass both entrances to reach her office.
The Agency argues that Complainant did not describe any difficulties using
the Pavilion entrance, and on the four days in December that she chose to
use the lobby entrance, she describes successfully entering the building.
The Agency argues that Complainant was not harmed in a term, condition,
or privilege of employment by the garlands, there is no indication she
was not accommodated, and her complaint does not rise to the level of
actionable harassment.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive” and the complainant subjectively perceives it
as such. Harris, at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
Applying the above principles, we find that Complainant’s complaint
fails to state a claim. On claim 1, Complainant did not show an injury
because she did not ask for any specific date or hours off, nor contend
that she had an absence without pay. Nor was she harmed by the Agency’s
delay, in response to Complainant’s emails, in re-examining its policy
on ASL and requirement for her submit medical documentation to support
a request for ASL, especially in light of the fact that she did not
make a request or ASL for a specific date or time. We fail to see how
Complainant was injured in anyway by the legal disclaimer in claim 1.d.
On claim 2, Complainant contends that the Agency denied her request for
reasonable accommodation to make the lobby entrance stairway accessible
by adjusting or removing the garlands from railings on the stairs leading
to the lobby. We agree with the Agency’s finding that Complainant
was not harmed in a term, condition, or privilege of employment by the
garlands during the holiday season. There was an alternate building
entrance available with no stairs and automatic doors closer to her
office, and on the occasional day she preferred to use the lobby entrance
because of rain, she gained entrance, albeit not all security was helpful.
While Complainant was inconvenienced, she has not shown she was in any
way harmed.
We also find that the complaint does not rise to the level of actionable
harassment, nor has Complainant alleged incidents which would reasonably
likely deter protected activity.
The Agency’s decision is AFFIRMED.
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
April 12, 2012
__________________
Date
1 Complainant later explained that stanchions at the lobby level of
the public access stairs complicated entry to the building because,
as an employee, she needed to bypass the magnetometer and x-ray equipment.
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0120111092
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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