01965140
10-30-1998
Zoila J. Verdeal, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.
Zoila J. Verdeal v. Department of Veterans Affairs
01965140
October 30, 1998
Zoila J. Verdeal, )
Appellant, )
)
v. )
) Appeal No. 01965140
Togo D. West, Jr., ) Agency No. 95-0170
Secretary, )
Department of Veterans Affairs,)
Agency. )
_______________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (Commission) from the agency's final decision (FAD)
concerning her allegation that the agency violated the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.;
and �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. The appeal is accepted by the Commission in accordance with
the provisions of EEOC Order No. 960.001.
The issues presented in this appeal are whether appellant established
that she was subjected to harassment by her supervisor, during the period
of August 8, 1994 through September 2, 1994, because of her age (68)
and her physical disability (osteoarthritis) when:
1) she was asked to perform the duties of a File Clerk, which involved
physical activities that exceeded her physical limitations;
2) her supervisor and another agency official requested that she submit
additional medical certifications regarding her disability;
3) the options of retirement or resignation were discussed with her;
4) her supervisor did not congratulate her for having been selected the
"Employee of the Quarter;"<1> and
5) a broken table in her area was not repaired, after she reported the
matter to the appropriate agency official.
Following an investigation of the above issues, appellant was provided
a copy of the investigative file and notified of her right to request
a hearing before an EEOC Administrative Judge. On August 28, 1995,
the appellant requested a final agency decision without a hearing.
Thereafter, the agency, analyzing appellant's complaint as a disparate
treatment claim, issued a final decision dated May 30, 1996, which
found that appellant had not been discriminated against. This appeal
followed.
Appellant was hired at the agency's Medical Center in Florida on November
20, 1988, as a Clerk Typist, GS-4, Step 1. On January 20, 1989, she
requested a change of position to File Clerk, GS-3, Step 4. According to
appellant's testimony, in 1989, she was assaulted and robbed. In addition
to having six ribs broken, her left leg was injured. Subsequently,
she stepped on a stone and further injured her left foot. In 1992,
appellant, pursuant to a settlement agreement, was non-competitively
promoted to the position of Program Clerk, GS-303-4 in the File Room
Unit of the Medical Administration Service. Appellant worked at the
Reception Desk. According to the record, appellant's position required
that she repair and replace torn and damaged medical records and folders.
Appellant's job allowed her to sit at a desk most of the time. There were
approximately 38 other employees who worked in the File Room.
Appellant testified that although she worked as a Program Clerk for two
years, she did not receive a copy of her formal position description from
her supervisor, A-1, until an August 8, 1994 meeting. At that time,
she noticed that the additional requirements of standing, walking, and
taking requests had been added.<2> Appellant maintained that these
new requirements were outside the scope of her medical limitations.
According to appellant, A-1 had previously asked her to perform Filing
Clerk duties. Appellant stated that she refused to perform these
additional tasks because they were against her doctor's instructions
and violated the terms of her settlement agreement with the agency.<3>
According to appellant, A-1 told her to obtain a medical certificate from
her doctor. Appellant provided a note from her doctor, dated August 8,
1994, that indicated she had "[t]rauma to left ankle 4 years ago - some
osteoarthritis. . . ." The note went on to indicate that "[p]atient
may work full-time, if she avoids prolonged standing or walking."
On September 1, 1994, appellant met with A-1 and the new Chief of Health
Information Management Systems, A-2. The purpose of the meeting was
to review appellant's position description and her work limitations.
Appellant, during the meeting, was told that she needed to submit a more
specific medical certificate. Apparently, appellant initially refused
the request.<4> Appellant, however, stated that she was given three
options: 1) to bring in another medical certificate that addressed
the requirements of her position description; 2) resign from her job;
or 3) retire. Appellant stated that since she felt she did not have a
choice, she decided to submit the new medical certificate. Appellant,
however, felt that since the term "retirement" was used by A-1 and A-2,
she was being harassed because of her age.
On September 9, 1994, appellant submitted the medical certificate to A-1
and A-2. According to appellant, they were not satisfied; therefore,
she had to resubmit a third certificate.<5> According to appellant,
she felt threatened and intimidated by these repeated requests for her
doctor's medical certifications. Appellant also testified that A-1 had
tried to get her to bring in a medical certificate every year, because
she wanted to place her in a more strenuous position.<6>
A-3, an agency official, testified that she had a meeting with A-1 and
A-2 where they explained to her that there were "six, seven or more"
individuals in the File Room claiming that they were disabled. Since so
many people were "picking and choosing" the duties they wanted to perform,
A-3 stated that the major portion of the work was not being completed
and a huge backlog was created. A-3 stated that when she asked them
what kind of medical evidence they had to support these claims, they
told her they did not have anything. Therefore, A-3 advised them to
get medical documentation outlining any physical limitations and the
duration of said limitations. According to A-3, appellant was never
specifically discussed. A-3 also stated that she advised A-1 and A-2
that if an employee indicated that they could no longer work or perform
the duties of the position, they should advise them that their option
was to look for another job within their physical limitations. She also
added that the employee could:
pursue a disability retirement, if that was basically what they were
interested in. Resigning would have been mentioned, because that was
an option. The only time we'd get into accommodations or reassignment
is like the case of [appellant]. She did eventually come back with some
very specific limitations.
According to A-2, there was a large backlog in the File Room.<7>
Therefore, she had to assess the overall performance of all the employees
in the File Room. This included those who had light duty assignments.
A-2 indicated that ideally there should have been no more than two light
duty assignments in the File Room. According to A-2, appellant was not
the only person they interviewed. She stated that they spoke to every
employee and discussed their job descriptions and their performance plans.
She indicated that she wrote a short assessment after each interview.
These assessments were entitled "Report[s] of Contact." A review of
appellant's Report of Contact dated September 1, 1994 indicates that A-2
spoke to her about the requirements of the Program Clerk/Quality Control
positions and the physical demands of said position. According to the
document, the options of retirement and resignation were also discussed,
but declined. According to A-2, these options were discussed, but only
in general terms. Finally, A-2 indicated that "[w]e have hundreds of
thousands of reports to be filed in the File Room. I feel that there
is no one who works in the File Room today who can be exempt from that
duty at any time." A-2 did note, however, that appellant's ability to
engage in filing activities was subject to her physical limitations.
According to A-1, every employee who was on light duty was asked to
bring in an updated medical certificate. The purpose was to determine
what these individuals could or could not do. If an employee felt that
he was unable to perform all the duty requirements, they were asked to
present a certificate from their doctor with their limitations clearly
set forth. With regard to appellant's contention that she had to submit
three different medical certificates, A-1 stated that the first time
appellant was asked to bring in a medical certificate, she refused.
Subsequently, when she did bring a certificate, it was too general;
therefore, she was asked for another one.
Although appellant maintained she was told she would have to lift up to
50 pounds, A-1 denied this. Appellant's position description, which
is contained in the record, does not contain a lifting requirement;
however, it does state that the position does involve standing, bending
and walking. A review of appellant's medical certificate indicates that
she can lift 0-10 pounds and stand or walk, on an intermittent basis,
up to two hours per day. She can also bend, stoop, twist, pull/push
and reach over her head, on an intermittent basis, for up to 30 minutes
per day.
With regard to appellant's contention that A-1 did not congratulate
her when she received the "Employee of the Quarter" Award, A-1 stated
that during the staff meeting, she clapped and said congratulations at
the same time as everyone else. She also indicated that she mentioned
appellant's award during her staff meeting. Other officials testified
that appellant's picture was placed on the bulletin board and that she
received the same recognition as other employees in the department who
won the award.
Finally, appellant indicated that in August 1994, she submitted a
memorandum concerning a broken table in her area. This memorandum,
which was submitted to appellant's former supervisor, was not acted
upon. According to appellant, the condition of the table was dangerous.
A-1 testified that she did not know about the broken table until an EEO
counselor informed her. Thereafter, A-1 substituted the broken table
with a desk.
Based on our review of the record, we find that appellant, throughout
the investigation of her complaint and on appeal, consistently asserted a
claim of harassment, not disparate treatment. In this regard, appellant
maintained that the agency subjected her to harassment on the bases of
her age<8> and physical disability.<9> Harassment of an employee that
would not occur but for a prohibited discriminatory motive is unlawful
if it is sufficiently patterned or pervasive. See McKinney v. Dole,
765 F.2d 1129, 1138-39 (D.C. Cir. 1985). In order for harassment to be
considered conduct in violation of the regulations that we enforce, it
must be pervasive or severe enough to significantly and adversely alter
the conditions of the victim's employment and create an abusive working
environment. Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993).
The conduct in question must be evaluated from the standpoint of a
reasonable person, taking into account the particular context in which it
occurred. Highlander v. K.F.C. National Management Co., 805 F.2d 644 (6th
Cir. 1986). Unless the conduct is very 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). In the
present case, the Commission finds that appellant has not established that
she was harassed on the bases of her age and physical disability. We do
not find that the incidents identified by appellant are "patterned and
pervasive." Furthermore, there is no persuasive evidence from which to
infer that these incidents were motivated by a discriminatory animus.
Finally, we do not find that the actions at issue were so severe as
to constitute harassment. We note in this regard that all File Room
employees were required to meet with management in order to review their
position descriptions and work limitations. All employees with physical
limitations were required to present updated medical certifications.
Appellant was asked to resubmit her medical certificate because it was
not specific enough, not because of a desire to harass her. Although
the options of retirement or resignation were presented to appellant,
according to A-2, these options were only discussed in general terms.
Appellant, who was already being accommodated with a position that allowed
her to remain seated for a majority of the day, failed to present any
persuasive evidence that she was asked to work outside of the physical
limitations imposed by her doctor. Also, appellant apparently received
the same recognition as other employees who received the "Employee of
the Quarter" Award and the broken table in her area was replaced, after
A-1 learned of the matter.
Accordingly, we affirm the final agency decision and find that appellant
has not proven, by a preponderance of the evidence, that the agency
subjected her to discriminatory harassment because of her age and physical
disability.<10>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
OCT 30, 1998
___________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Notwithstanding appellant's assertion that the above acts of alleged
harassment occurred between August 8, 1994 and September 2, 1994, we
note that this allegation took place on June 15, 1994.
2Prior to this time, appellant had apparently utilized a position
description that she had prepared herself. According to A-1, appellant
came to the meeting with a position description that she, appellant,
had typed. Appellant, however, was informed that they would use her
official position description that was on file for her.
3We note that the record does not contain a copy of any medical
information from appellant's doctor prior to August 8, 1994. Moreover,
a review of appellant's 1992 settlement agreement does not support her
contention that performing these additional duties would have been a
violation of its terms.
4According to A-1, appellant accused them of "[t]rying to do something
to her job."
5The record indicates that A-1 wanted specific information on the
history of appellant's medical condition, her doctor's diagnosis and
the basis for his determination with respect to work restrictions.
6According to the record, the agency's policy was to require annual
updates of medical certificates.
7A-4, the Associate Chief of Medical Administration Services, testified
that there was several hundred feet of "loose" filing.
8Appellant alleged that she was harassed by her supervisor, A-1, because
she was oldest employee in her department. Contrary to appellant's
testimony, the oldest employee was 80 years old. The record also
indicates that there were nine individuals who were older than her.
9Based on our review of the record, we find that appellant is a qualified
person with a disability as set forth in EEOC 29 C.F.R. �1614.203.
A review of appellant's medical certificate indicates that she does have
a substantial limitation to the major life activity of walking.
10On appeal, appellant expressed displeasure with the fact that the
investigator failed to call as witnesses all of the seventeen people
she designated. If appellant was dissatisfied with the results of the
agency's investigation, she could have requested a hearing before an EEOC
Administrative Judge, who would have heard her case de novo. However,
as previously noted, appellant, upon being notified of her right to a
hearing, requested a final agency decision.