01A32142
11-24-2004
Ciria Sanchez-Baca, Complainant, v. Roderick R. Paige, Secretary, Department of Education, Agency.
Ciria Sanchez-Baca v. Department of Education
01A32142
11-24-04
.
Ciria Sanchez-Baca,
Complainant,
v.
Roderick R. Paige,
Secretary,
Department of Education,
Agency.
Appeal No. 01A32142
Agency No. ED-981-7000
Hearing No. 100-A1-7629X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning 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., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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. For the following reasons, the Commission affirms
the agency's final action.
ISSUES PRESENTED
The issue presented herein is whether the EEOC Administrative Judge (AJ)
properly determined that complainant failed to prove by a preponderance
of the evidence that the agency discriminated against her on the bases
of age (D.O.B. April 3, 1942), sex (female), national origin (Mexican
American), race (White), disability (rheumatoid arthritis), and reprisal
for prior EEO activity when:
(1a) on June 6, 1997, the Equal Employment Opportunity Group (EEOG)
Manager (the Manager) informed complainant that he did not want to comply
with her existing disability accommodation, which was working at home;
(2a) despite the medical officer's opinion dated October 21, 1997, finding
medical support for the existing accommodation, the Manager harassed
complainant by persistently questioning her need for the accommodation
in written correspondence and during meetings on October 16, 1997,
November 14, 1997, and December 5, 1997; and
(3a) the Manager created a hostile work environment by disputing the need
for her existing reasonable accommodation, threatening her job security,
and acting in an aggressive and intimidating manner during meetings on
October 16, 1997, November 14, 1997, and December 5, 1997.
BACKGROUND
Complainant is employed at the agency as an Equal Employment
Specialist, GS-13. Due to complainant's impairment of rheumatoid
arthritis, complainant is unable to regularly commute from her home
to the workplace. In a November 1994 memorandum, the agency provided
complainant with a modified work schedule that included working at home
three days per week and working at the office for two days per week.
In 1996, complainant's condition worsened, and the agency modified the
1994 memorandum to require the complainant to �come to the office once
or twice a week if she is up to commuting.� The record reflects that,
as time progressed, complainant's work schedule consisted of complainant
going to her office for one-half day on Fridays.
In April 1997, the Manager took his position in EEOG and began his efforts
to reorganize the unit. He discussed workloads and assignments with
his staff. The Manager testified that he also discussed complainant's
accommodation with her, and asked whether she could be present in
the office more often. Complainant testified that she met with the
Manager on several occasions, including June 6, 1997, October 16, 1997,
November 14, 1997, and December 5, 1997. Complainant asserted that the
Manager told her he would not comply with her existing accommodation,
and that he wanted her to go to the office at least three days a
week, consistent with the policy applied to all employees in the EEOG.
Complainant further testified that she felt that the Manager created a
hostile work environment for her.
The record reflects that, during this time period, the Manager requested
that complainant provide him with medical documentation. In said
documentation, complainant's physician stated that, �If [complainant]
were required to travel to work as much as once per week, I would
then have to recommend that she stop working all together.� The record
reveals that complainant's work schedule, i.e., reasonable accommodation,
never changed.
On January 23, 1998, complainant filed a formal complaint. At the
conclusion of the agency's investigation, complainant received a copy
of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ issued a Bench Decision, finding no
discrimination. The AJ found that issue (1a) failed to state a claim
because, while the Manager conveyed an intention to take a personnel
action, he never did so. The AJ then analyzed whether the Manager
harassed complainant and created a hostile work environment when he
repeatedly questioned her regarding her continued need for the specific
accommodation. In this regard, the AJ noted that complainant requested
the meetings of October 16, 1997, November 14, 1997, and December 5, 1997.
He further explained that, when determining a reasonable accommodation,
the parties must engage in an interactive process, and that complainant
was exercising her accommodation beyond the plain language of the 1996
memorandum. Furthermore, the AJ noted that only one other employee in
the EEOG was allowed to work from home, and he only did so for one day
per week. As to complainant's claims of age, race, national origin,
sex, and reprisal, the AJ found that there was no support in the record
that such were the motivating factors in this case.
The agency adopted the AJ's finding of no discrimination.
On appeal, complainant states that she submitted three motions to
the AJ, which she believed supported her claim of discrimination.
In Complainant's Response to Scheduling Order Dated October 22, 2002
and Motion to Stay and/or Place on Hold EEOC Case No. 100-A1-7629X Due
to Extraordinary Circumstances, complainant requested that the present
matter be stayed until she could �physically and mentally represent
herself,� and she requested that her complaint be amended to include a
�Proposal to Remove� letter, dated May 13, 2002, and a harassment claim.
In two motions entitled Complainant's Motion to Add/Amend to EEOC Case
No. 100-A1-7629X, Agency Case No. ED-9817000, complainant requested
that her complaint be amended to include four issues, including the May
13, 2002 Proposal to Remove, that she regarded as like and related to
the present matter. The AJ did not rule on these motions, however,
and complainant requests that we consider said motions on appeal.
The agency submits no statement on appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. The AJ correctly dismissed issue (1a) for failure to state a
claim, pursuant to 29 C.F.R. � 1614.107(a)(1). See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). We further
find that complainant failed to present sufficient evidence, showing
that any of the agency's actions were harassment or created a hostile
work environment, or were motivated by discriminatory animus toward
complainant's race, sex, national origin, age, disability, or reprisal.
In her statement on appeal, complainant states that the AJ failed
to rule on three of her motions, namely Complainant's Response to
Scheduling Order Dated October 22, 2002 and Motion to Stay and/or Place
on Hold EEOC Case No. 100-A1-7629X Due to Extraordinary Circumstances,
and 2 motions entitled Complainant's Motion to Add/Amend to EEOC Case
No. 100-A1-7629X, Agency Case No. ED-9817000. To the extent that
complainant requested a stay until she was �physically and mentally�
able to appear pro se, complainant produced no medical evidence of
her incapacitation to support her request. Furthermore, the hearing
transcript reflects that complainant did in fact represent herself at
the hearing on December 12, 2002, and adequately prosecuted her case.
Complainant also requested that the following issues be consolidated with
the present case: (1b) she received a Proposal to Remove letter dated May
13, 2002, from the Manager; (2b) on October 29, she discovered that the
Manager awarded cash awards to the members of complainant's team and/or
all the members of her office, but she did not receive an award; (3b)
the Manager refused to accommodate her in order to participate fully in
a mandatory off-site retreat on October 10-21, 2001, and required her
to take annual leave or be considered Absent Without Leave (AWOL); and
(4b) the Manager sent her a memorandum on July 13, 2001, requesting
medical documentation for her disability and threatening to change
her accommodations, which would ultimately result in her termination.
Complainant explains that she believes these motions support her claim
of discrimination in the present case.
We find that the AJ's failure to rule on these motions constitutes a
harmless error that does not affect the finding in this case. See Hines
v. Department of the Navy, EEOC Request No. 05960667 (March 26, 1998),
fn. 1. ("harmless error" is an error "whose existence has no impact on
the outcome of the case"). With respect to complainant's claim that
she received a Proposal to Remove, the agency must dismiss a complaint
where complainant alleges that a proposal to take a personnel action is
discriminatory. 29 C.F.R. � 1614.107(a)(5); see Pearigen v. Department of
Agriculture, EEOC Appeal No. 01992719 (October 19, 2001). Issues (2b) and
(3b) of the proposed amendment are not like or related to the original
complaint, and therefore it would be improper to include these claims
with the present complaint. 29 C.F.R. � 1614.106(d). Finally, we find
that, while issue (4b) of the amendment is similar to the claims in the
present matter, more than two and one half years separate complainant's
initial complaint from issue (4b), such that there is likely a change
in circumstances vitiating any need for consolidation.
In sum, the Commission discerns no basis to disturb the AJ's decision.
After a careful review of the record, including complainant's arguments
on appeal, and arguments and evidence not specifically addressed in
this decision, we find that the AJ's decision, finding no discrimination
was proper.
With respect to issues (1b), (2b), (3b), and (4b), the record remains
unclear as to whether complainant ever filed a formal complaint as
to these four issues. We note that, to the extent that the agency
has not already done so, and in accordance with 29 C.F.R. Pt. 1614,
the agency shall begin and/or continue processing complainant's claims
that: (1b) she received a �Proposal to Remove� letter dated May 13,
2002, from the Manager; (2b) on October 29, she discovered that the
Manager awarded cash awards to the members of complainant's team and/or
all the members of her office, but she did not receive an award; (3b)
the Manager refused to accommodate her in order to participate fully
in a mandatory off-site retreat on October 10-21, 2001, and required
her to take annual leave or be considered Absent Without Leave (AWOL);
and (4b) the Manager sent her a memorandum on July 13, 2001, requesting
medical documentation for her disability and threatening to change her
accommodations, which would ultimately result in her termination.
CONCLUSION
Accordingly, we affirm the agency's final action.
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
____11-24-04______________
Date