0120150442
08-10-2017
Tynisha H.,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (National Park Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tynisha H.,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120150442
Agency No. NPS-100-489
DECISION
On November 3, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 30, 2014, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented before us are whether Complainant established, by preponderant evidence, discrimination based on sex (female) and disability (toxic mold infection, sick building syndrome) when: (1) on February 24, 2010, she was reassigned from her position as the National Historic Landmarks Program Manager (NHLPM); (2) on July 1, 2010, she was denied a reasonable accommodation, which prevented her from completing assigned duties and tasks; and, (3) in April 2010, her supervisor did not provide adequate information in response to her Office of Worker's Compensation Programs (OWCP) claim.
BACKGROUND
During the period at issue, Complainant worked as a NHLPM at the Agency's Southeast Regional Office of the National Parks Service located in Atlanta, Georgia. On July 27, 2010, she filed a formal complaint as set forth above in the "Issues Presented."2 The Agency accepted the complaint for investigation.
After investigating Complainant's allegations, on January 13, 2011, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge or, alternately, an immediate decision from the Agency based on the ROI. On February 10, 2011, Complainant requested an immediate decision from the Agency. Accordingly, the Agency issued a decision based on the ROI pursuant to 29 C.F.R. � 1614.110(b). In the decision, the Agency found that Complainant did not establish discrimination as alleged regarding the February 24, 2010 and July 1, 2010 allegations, and dismissed her OWCP allegation as a collateral attack on another Agency's proceedings. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency's misunderstanding and mischaracterizations of the information contained in her complaint led to errors in the final decision's legal analysis. She further contends that the Agency's decision did not explain in enough detail the extent of the water damage in the building in which she worked, and what caused her to become sick. For the most part, we find that Complainant's many contentions on appeal in some way sets forth her belief that the Agency conducted an insufficient investigation regarding the underlying complaint at issue herein. See Complainant's January 9, 2015 Statement in Support of Appeal of Final Agency Decision, 1-26.
The Agency did not submit any substantive contentions on appeal.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
Complainant's Contentions on Appeal
Initially, we address Complainant's contentions on appeal, which reveal her belief that the Agency conducted an insufficient investigation regarding this matter. Pursuant to 29 C.F.R. � 1614.108(b), "[i]n accordance with instructions contained in Commission Management Directives, the [A]gency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint." This section goes on to define "[a]n appropriate factual record [as] one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred." Id. Upon review, we find that the Agency developed an impartial and appropriate factual record; one that allows us to draw conclusions as to whether discrimination occurred.
Disparate Treatment (Sex)
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume, without so finding, Complainant has established a prima facie case of sex discrimination.
We now look to whether the Agency has met its burden to provide legitimate, nondiscriminatory reasons for the actions alleged to be discriminatory. The Agency stated that Complainant was reassigned from her NHLPM position because she could no longer perform the tasks and assignments associated with the job. Complainant's first line supervisor (S1) noted that he received complaints that Complainant's work was not getting done, and that she was not reporting to work on a full-time basis. Specifically, S1 stated that he reassigned Complainant because of the unlikelihood she could return to the regional office to work and the reality that Complainant could not run a program in absentia. Her second-level supervisor, S2, confirmed S1's statement by adding that it became difficult for Complainant to perform the duties needed in her program (i.e., managing people) as it was difficult for her staff to get a hold of her. S2 concluded by stating that the change was made to ensure efficiency within the program. The Deputy Regional Director supports S1's and S2's statements by acknowledging that work assignments were juggled as Complainant was not in the building, which necessitated someone else to do her work. She went on to state that Complainant's reassignment was implemented to get mission-critical work for the National Park Service completed.
The Agency also provided a medical note from Complainant's physician dated August 4, 2010, which indicated that Complainant could only work four hours per day, five days a week. S1 also provided documentation showing that between the dates of September 22, 2009 through September 24, 2010, Complainant used 560.55 hours of sick leave for mold toxicity. We find that the Agency's stated reason qualify as legitimate and nondiscriminatory.
Complainant must now present evidence showing that the Agency's stated reason is a pretext based on her sex. In her attempts to meet her pretext burden, Complainant argues that her supervisors' decision to reassign her into a new position indicates that, because they were male, they knew what was best for a female employee. Complainant stated that the way her supervisors spoke to her were patriarchal, sexist, and dismissive. However, Complainant's interpretation of the way her supervisors spoke to her amounts to no more than her own subjective beliefs that sex was a factor regarding the Agency action at issue. Such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant did not establish that the Agency action was pretextual.
Denial of Reasonable Accommodation (Disability)
Under the Commission's regulations, the Agency may not discriminate against a qualified individual because of disability and 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 reasonable accommodation would cause an undue hardship. See 29 C.F.R. � 1630.2(o), (p). The Agency may choose among reasonable accommodations as long as the chosen accommodation is effective. An "effective" accommodation either removes a workplace barrier, thereby providing an individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation).
To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation. An individual with a disability is "qualified" if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m). "Essential functions" are the fundamental job duties of the employment position that the individual holds or desires. Id. 29 C.F.R. � 1630.2(n). We presume, without so finding, that Complainant is a qualified individual with a disability.
We further find there is no evidence in the ROI that demonstrates that Complainant was denied a reasonable accommodation on July 1, 2010, which prevented her from completing assigned duties and tasks. The ROI reveals that in a series of emails exchanged between Complainant and S1 regarding accommodations, the Agency provided Complainant with an alternative work space, allowed her to telework, granted her liberal leave, and placed in her a position where failure to meet deadlines did not have as much impact as her NHLPM position. Based on Complainant's disability and its corresponding effects, and the fact that the emails requesting accommodation were general rather than specific in nature, we find no persuasive evidence that the Agency denied Complainant an accommodation to which she was entitled.
Had Complainant requested a hearing before an Administrative Judge, the Administrative Judge could have made credibility determinations based on witness testimony. See generally EEO MD-110, at Ch. 7. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us.
OWCP Claim
The Agency dismissed Complainant's OWCP claim upon finding that it amounted to a collateral attack on another Agency's jurisdictional proceeding. Regarding this claim, Complainant alleges discrimination when, in April 2010, her supervisor did not provide adequate information in response to her OWCP claim.
The Agency's alleged failure to provide adequate information regarding Complainant's OWCP claims occurred within the OWCP process. Therefore, we agree with the Agency that the OWCP aspect of Complainant's formal complaint is indeed a collateral attack on the OWCP process. The proper forum for Complainant to have raised her challenges to actions which occurred during the OWCP process was within the OWCP forum itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the OWCP process. We note that the Commission has previously held that a complaint involving an Agency's failure to provide adequate information regarding a complainant's OWCP claim constituted a collateral attack and failed to state a claim. See Cooper v. Dep't of the Army, EEOC Appeal No. 0120122536 (Oct 10, 2012); Penticuff v. U.S. Postal Serv., EEOC Appeal No. 0120121931 (July 27, 2012); Pagliuso v. U.S. Postal Serv., EEOC Appeal No. 0120120974 (Apr. 30, 2012). We therefore find that the Agency properly dismissed for failure to state a claim this issue of Complainant's formal complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant failed to establish discrimination based on sex and disability when she was treated disparately and/or denied a reasonable accommodation. We further find that Complainant did not establish discrimination when the Agency alleged provided inadequate information regarding her OWCP claim as this claim was properly dismissed by the Agency for failure to state a claim. Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__8/10/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant also alleged discrimination when the Agency failed to provide adequate equipment and supplies after she relocated to her new worksite but, in a letter dated February 10, 2011, subsequently withdrew that claim. This matter is not before us on appeal.
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