01a44221
05-04-2005
Charla L. Kiolbassa, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Charla L. Kiolbassa v. Department of the Navy
01A44221
05-04-05
.
Charla L. Kiolbassa,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A44221
Agency No. DON-00-62204-012
DECISION
On June 14, 2004, Charla L. Kiolbassa (hereinafter referred to as
complainant) filed an appeal from the May 19, 2004, final decision of the
Department of the Navy (hereinafter referred to as the agency) concerning
a complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,
the agency's decision is REVERSED.
ISSUE PRESENTED
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency harassed her and
discriminated against her based on sex when she was involuntarily
reassigned after informing her supervisor that she was pregnant.
BACKGROUND
Complainant worked as a firefighter, GS-5, at the Marine Corps Logistics
Base in Barstow, California, and had been a firefighter for the agency
since 1989. At the Barstow facility, firefighters worked 24 hours
for three shifts per week with a day off in between and were paid for
a 72-hour week, 40 hours of regular pay and 32 hours of premium pay.
On August 8, 1999, complainant informed her supervisor (S1) that she
was pregnant, and he stated that she would be transferred to a position
that would pay her for a 40-hour week at regular pay.<1> Complainant was
detailed to Fire Prevention and, after 30 days of her previous pay rate,
was paid for 40 hours a week, since she was not eligible for premium
pay in this position.<2>
Complainant contended that male firefighters, who had temporary
restrictions and were unable to work as firefighters, were not removed
from their positions as firefighters and, instead, were given light duty
work and continued to receive the 72-hour pay without using leave. She
also contended that she was often ridiculed by managers and co-workers.
She identified one firefighter, FW (E1), who was allowed to remain
working with premium pay after he had a heart attack followed by heart
surgery in 1995, and a second firefighter, CM (E2), who remained in the
position during his recovery for two months in 1996. E1 submitted a
statement to the record, stating that, during his recovery from heart
surgery, he was assigned to Fire Prevention, working light duty for
eight hours and receiving his 72-hour week pay without any reductions
for two-to-three months. He mentioned two other firefighters who had
medical restrictions and worked light duty but continued to work and be
paid for a 72-hour week.<3>
In his sworn statement to the record, S1 explained his actions: When
complainant told him that she was pregnant, he asked for a note from
her doctor, and, for the remainder of her shift on August 8, she was
detailed to ride in the ambulance. On her next workday, S1 detailed her
to Fire Prevention for an eight-hour day and allowed her to submit a leave
slip covering the remaining 16 hours of the shift. At the same time, he
provided her information on leave under the Family and Medical Leave Act.
S1 acknowledged that males with temporary restrictions had been retained
as firefighters and assigned to light duty when they were in 'disability
status' or on continuation-of-pay (COP) status through the Office of
Workers' Compensation Program (OWCP), in order to "get them to work at
least eight hours" out of the 24 that they were paid for. (Statement,
p. 9). Complainant, however, was not on COP or in disability status,
and complainant had to use leave to be paid for the full 72 hours,
"because it was not a work related injury, it wasn't coming under COP
and because she was going home she had to use the 16 hours of leave."<4>
(Statement, p. 10).
Noting that complainant was "not on disability at the time...," he stated
further that the individuals "who were accommodated were on either COP or
disability because of work related injuries," so that the remaining 16
hours of their shift could be charged against COP. (Statement, p. 12).
S1 identified several employees, LB (E3), JE (E4), E1, and Mr. C (E5)
who had work-related injuries and were allowed to work eight hours and
be paid for 72 hours.<5> S1 also denied that he harassed or ridiculed
complainant, and, in fact, he attempted "to accommodate her and allow
her to receive the same amount of money she would have got had she still
been in the old program under premium pay" by allowing her to use leave.
(Statement, pp. 15-16); see fn. 3.
The Fire Chief (FC) stated that complainant was treated the same as a
male firefighter currently seeking light duty who also will be assigned
to Fire Prevention and receive 40 hours pay, in apparent reference to
E5.<6> As for prior employees with temporary restrictions, he described
one employee seeking light duty who was sent to another department
to shred paper at night. When asked whether male firefighters were
refused a 72-hour week, he identified E1, stating that "we shifted [E1]
into working the evening hours [and] that program is still in place"
in Fire Prevention, but management "helped accommodate him in the 72
hour work week." (Statement, pp. 39-40).
In addressing complainant's desire for a 72-hour week, he stated that
"the only position we had available was the Fire Prevention position
that we created within FD, which is a 40 hour week." (Ibid.). As for
her assignment to Fire Prevention, he stated that a new position
description (PD) had to be written for her to fit her restrictions.
He could not explain why E1 and others were allowed to remain in the
72-hour position while complainant was not, nor could he explain why she
was asked to submit a new resume but concluded that the request for a
resume "was actually to benefit her to find her a light duty position."
(Statement, p. 41). While FC admitted that he did not know of any other
firefighter who was asked for a resume, he contended that it was in her
best interests, and, if she typed, the agency would find her a typing
job or one with office duties. (see Statement, p. 41).
FC went on to explain that the treatment of employees with medical
restrictions depended on the nature of those restrictions, that "depending
on the medical restrictions determines what we offer the employee."
(Statement, p. 42). In the case of E1, FC stated that his doctor said
walking was good for him after his quadruple bypass, so he was assigned to
housing inspection. In addition, FC stated that previously, the agency
had accommodated employees for a 72-hour week in the dispatch office,
but dispatch was now performed elsewhere. He continually emphasized
that the agency was concerned about the "liability of her and the child,"
that the agency wanted "to make sure we erred on the side of the safety
of the mother and the child," that the agency was "looking out for the
best interest of her [and] of the child," and that the agency "looked
after her best interest."<7> (Statement, pp. 33, 34, 43, 46).
Referring to complainant's claim of harassment, S1 and FC denied harassing
her, treating her differently, or singling her out in anyway. S1 noted
that he was sometimes surprised at her language in the firehouse. Both
complained, also, that complainant failed to timely submit her initial
doctor's note of restriction so that they were forced to contact her
doctor directly. We note, however, that complainant revealed her
pregnancy to them on August 8, and obtained the note on August 11, for
presentation to them on August 12.<8> They do not indicate why they
were so anxious to know of her restrictions, since they had already
announced her reassignment to another position outside of firefighting.
In addition to S1 and FC, statements to the record were made by the
Manager of Human Resources (HR) and E1. HR testified that she advised
the Fire Department in regard to complainant's situation. She stated
that the agency had two options: retain complainant in her position and
remove the duties that were outside her restrictions or assign her to a
position completely within her restrictions. She asserted that the agency
had the same options for a male firefighter with medical restrictions.
The record contains a PD for the Firefighter, GS-5, position dated
January 1992, and an amendment dated May 1998, the amendment being to
add requirements for state licenses and certifications. Neither version
is the new PD for complainant that FC referred to in his statement.
There is also a list of firefighters as of August 1999, various
documents concerning complainant's detail, and complainant's rebuttal
statement. Most significantly, however, there are no documents or
clarifying information about, inter alia, the comparison employees
cited by complainant, S1, FC, and others; information about the old
or new pay system; explanation or documentation about light duty for
temporarily impaired workers; documentation supporting the claim that
E1 was transferred or documents showing his pay; and the pay complainant
received and days worked.
ANALYSIS AND FINDINGS
Pregnancy Discrimination Act
The Pregnancy Discrimination Act of 1978 (PDA) amended Section 701 of
Title VII of the Civil Rights Act of 1964 by adding Paragraph (k) which
states that claims of discrimination based on sex include, but are
not limited to, "because of or on the basis of pregnancy, childbirth,
or related medical conditions; and women affected by pregnancy,
childbirth or related medical conditions shall be treated the same for all
employment-related purposes, including receipt of benefits under fringe
benefit programs, as other persons not so affected but similar in their
ability or inability to work...." 42 U.S.C. � 2000e(k); see also 29
C.F.R. � 1604.10. In the Appendix to Part 1604, Questions and Answers
on the Pregnancy Discrimination Act, the Commission makes clear that:
"The basic principle of the Act is that women affected by pregnancy
and related conditions must be treated the same as other applicants
and employees on the basis of their ability or inability to work.
A woman is, therefore, protected against such practices as being fired,
or refused a job or promotion, merely because she is pregnant....If other
employees who take disability leave are entitled to get their jobs back
when they are able to work again, so are women who have been unable to
work because of pregnancy."
Disparate Treatment Claim (Sex)
Claims brought under the PDA are examined using traditional disparate
treatment analysis. Bernardi v. USPS, EEOC Appeal No. 01954090 (August
21, 1997). In the absence of direct evidence of discrimination, the
allocation of burdens and order of presentation of proof in a Title VII
case is a three-step process. McDonnell-Douglas Corp. v. Green, 411
U.S. 792 (1973). A complainant must first establish a prima facie case
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. McDonnell
Douglas, 411 U.S. 792 (1973); Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, the complainant must demonstrate by a preponderance of the
evidence that the agency's reasons were a pretext for discrimination.<9>
At all times, complainant retains the burden of persuasion, and it is her
obligation to show by a preponderance of the evidence that the agency
acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983).
At the time of the events herein, complainant was a pregnant female
and within a class protected under Title VII from disparate treatment.
She established a prima facie case of sex discrimination by presenting
sufficient evidence to raise an inference that she was afforded less
favorable treatment with regard to her pay and working conditions than
individuals outside of her protected class who were similar in their
employment status and medical restrictions. See Potter v. Goodwill
Industries v. Cleveland, 518 F.2d 864 (6th Cir. 1975). We find that
complainant has presented a prima facie case of sex discrimination with
regard to the agency's actions when she informed S1 of her pregnancy.
Complainant claimed that several male firefighters with medical
restrictions were afforded light-duty positions as firefighters and
retained their 72-hour pay during the course of their impairments.
In support, she submitted a statement from E1, who confirmed that while
he was under medical restrictions, the agency provided him a light-duty
position as a firefighter doing housing inspections, and, thus, he was
able to retain his 72-hour pay.
The burden of proceeding now belongs to the agency to articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, supra. The agency's explanation
must be sufficiently clear to raise a "genuine issue of fact" as to
whether discrimination occurred. Id., at 254. Moreover, it must
"frame the factual issue with sufficient clarity so that [complainant]
will have a full and fair opportunity to demonstrate pretext." Id.,
at 255-256. While the agency's burden of production is not onerous,
it must, nevertheless, provide a specific, clear, and individualized
explanation for the differential treatment. Complainant is entitled to
some rationale for her sudden reassignment and change in pay that provides
her with an opportunity to attempt to satisfy her ultimate burden of
proving that the agency's explanation was a pretext for discrimination.
In the matter before us, we find that the agency did not meet this
burden. In an effort to articulate its reasons, the agency presented
an explanation through S1 and FC, but their statements lacked clarity
and specificity, were inconsistent as to time and application, and
were not supported by probative evidence. The agency's defense to
complainant's claim seemed to be based on different pay systems and a
change in policy; however, at no time did the agency provide documents
or other evidence that presented a well defined explanation of the pay
systems or policy notices. Further, we find that their testimony is
riddled with stereotypical treatment of pregnant women--her immediate
removal and reassignment from her regular job and solicitous expressions
of concern for her health and the health of her unborn child. We find
that neither the record evidence nor the statements of S1 and FC suffice
to provide that specific, clear, and individualized explanation that is
required by Burdine to explain to complainant why she was immediately
reassigned and lost her 72-hour pay, while male firefighters with medical
restrictions retained their positions and pay performing light-duty.
We find that the agency did not meet its burden to articulate legitimate,
nondiscriminatory reasons for its actions, and, consequently, complainant
was not afforded a fair opportunity to demonstrate that the agency's
reasons were pretext.<10> Thus, we find that the agency discriminated
against complainant on the basis of her sex.
Harassment Claim
It is well-settled that harassment based on an individual's protected
status is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986). In order to establish a claim of harassment, a complainant must
show that: (1) s/he belongs to a statutorily protected class; (2) s/he
was subjected to unwelcome conduct; (3) the harassment complained of was
based on his/her protected status; (4) the harassment had the purpose or
effect of unreasonably interfering with his/her work performance and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer.<11> Frye
v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);
Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); see also Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (March 8, 1994).
Among other things, complainant alleged that S1 and FC called her doctor
when complainant informed them she was pregnant, she was reassigned
and lost pay immediately upon notice to S1, she was asked for a resume,
and threatened with loss of work and pay. We find that these actions
were not sufficiently severe or pervasive to alter the conditions of
the complainant's employment and did not rise to the level of illegal
harassment. After review, we find that the record does not show that
the events cited did not sustain a claim of harassment.
Remedy
In her formal complaint, complainant sought in remedy, inter alia,
restoration of sick and annual leave and back pay.<12> When
discrimination is found, the agency must provide the complainant
with a remedy that constitutes full, make-whole relief to restore her
as nearly as possible to the position she would have occupied absent
the discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19
(1975); see Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976);
Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July 21, 1994).
This includes elimination of the unlawful employment practice(s)
complained of as well as restoration of the victim to the position
s/he would have occupied were it not for the unlawful discrimination.
Also, the relief must be specifically tailored to cure the source of
the discrimination and minimize the chance of its recurrence.
We find that complainant is entitled to back pay for the period
she was unlawfully reassigned to a position with fewer hours of pay.
Specifically, she is entitled to back pay, if any, for the period from
August 8, 1999, when she informed S1 of her pregnancy, through the date
she stopped going to work in 1999; back pay shall be paid at the rate
of a 72-hour week. In addition, we find that complainant is entitled
to restoration of any leave, including sick and annual leave as well
as leave without pay, that she used to supplement her 40-hour week to
the extent that back pay does not remedy such loss. In addition, we
order the agency to provide training for S1, FC, and HR, if they remain
employed by the agency and to consider discipline for them. Finally,
we order that the agency pay reasonable attorney's fees, if any, and
post a notice of nondiscrimination.
CONCLUSION
Accordingly, the agency's decision is REVERSED. The agency is directed
to comply with the Order, below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
A. For the period from August 8, 1999, through the date complainant
stopped working, the agency shall determine the appropriate amount of back
pay with interest and other benefits due complainant in accordance with
this decision, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)
calendar days after the date this decision becomes final. The complainant
shall cooperate in the agency's efforts to compute the amount of back pay
and benefits due, and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
B. Within ninety (90) days of the date this decision becomes final, the
agency is directed to provide six (6) hours of training for S1 and FC
and four (4) hours of training for HR, if they remain employed with the
agency. Such training should address these employees' responsibilities
with respect to eliminating discrimination in the federal workplace
under the equal employment opportunity laws and place special emphasis
on prevention and elimination of discrimination against pregnant women.
The Commission does not consider training to be a disciplinary action.
C. Within ninety (90) days of the date this decision becomes final,
the agency is directed to consider appropriate disciplinary action
against S1 and FC and report its decision. If the agency decides to
take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.
D. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
and other evidence that all corrective action has been implemented.
A copy shall be sent to complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its Barstow (CA) and any satellite
facilities copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
For the period following the issuance of the AJ's decision, if
complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AN AGENCY OF THE UNITED STATES GOVERNMENT
This Notice is posted pursuant to an Order by the
United States Equal Employment Opportunity Commission dated
which found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privilege of
employment.
The Department of the Navy (MC), Barstow, CA, supports and will comply
with such Federal law and will not take action against individuals because
they have exercised their rights under the law. The Commission found
that the agency engaged in discrimination based on sex with respect to
the harassment and reassignment of an employee, and it has remedied the
employee affected by the Commission's finding by providing back pay,
non-pecuniary compensatory damages, and training for three managers.
The Department of the Navy (MC), Barstow, CA, will ensure that officials
responsible for personnel decisions and terms and conditions of employment
will abide by the requirements of all federal equal employment laws and
will not subject employees to harassment and discrimination based on sex.
The Department of the Navy (MC), Barstow, CA, will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participated in proceedings pursuant to, Federal equal employment
opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614.
1We note that her doctor did not impose restrictions until August 20,
1999, when he restricted her from climbing and firefighting.
2At some point later in 1999, complainant ceased coming to work. She
returned in April 2000, to resign effective April 24, 2000. The record
does not indicate the reason she stopped working. Events regarding her
resignation are not addressed in this decision,
3There is no evidence in the record that E1's heart surgery resulted from
a work-related injury or that the others he identified had work-related
injuries.
4S1's statement and that of the Fire Chief appear to state that when
complainant was moved to Fire Prevention, she had to use leave to makeup
a 72-hour day, but after her formal transfer to Fire Prevention, she
retained her 72-hour weekly pay rate for 30 days. There is no further
information available in the record regarding complainant's pay rate
upon her transfer.
5S1 stated that previously the department was under a different pay
system. His explanation of the old system was not clear and seemed
to deny that firefighters now worked a 72-hour shift. (See Statement,
p. 13). Other references in the record that refer to the old pay system
are similarly confusing.
6The statements in the record from agency managers are neither signed
nor dated. It appears that FC and S1 were speaking at some date between
April 11 and May 30, 2001, the dates of the investigation.
7In addition, FC opined that complainant resigned because she wanted
to work "eight hours a day, and home with her family at night, which is
conducive with a child, not the 24 hour schedule." (Statement, p. 47).
8Complainant also stated that staff in the doctor's office informed
her that FC and S1 had called several times seeking information on her
condition.
9The complainant must show that the agency's action was more likely than
not motivated by discrimination, that is, that the action was influenced
by legally impermissible criteria or animus, i.e., sex. Absent a showing
that the agency's articulated reason was used as a tool to discriminate
against her, complainant cannot prevail.
10In its final decision, the agency contended that complainant's detail
was "based on her medical restrictions" and makes other findings not based
on the record. (p. 5). In fact, the agency did not have complainant's
medical report until August 12, and it was not until August 20, 1999,
that her doctor placed her on medical restrictions.
11See, generally, Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (Rev. October 17,
2002).
12Complainant also sought relief from a debt owed to the government.
The Commission has no authority to restrain collection of a debt.