01a41176
07-29-2005
Darcel LaRue, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Darcel LaRue v. Department of the Navy
01A41176
July 29, 2005
.
Darcel LaRue,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A41176
Agency No. 02-61414-065
Hearing No. 120-2003-00280X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant was employed as a Security Clerk, GS-4, at the agency's
Norfolk Naval Shipyard in Portsmouth, Virginia. Complainant filed a
formal complaint of discrimination alleging that the agency discriminated
against her on the bases of race (African-American), sex (female),
disability (crippling polio), and reprisal for prior EEO activity when:
(a) Complainant was subject to a pattern of harassing conduct by her
supervisor based on race, sex and disability when:
In February 2002, complainant's most recent request that an emergency
�panic button� be installed at her job site was denied, yet her
co-workers who are less vulnerable all have �panic buttons.�<1>
In February 2002, complainant was accused of being late when she signed
in timely, yet a number of her co-workers are never questioned even
when they are late and sign in as being on time.
In February 2002, complainant was denied access to the internet yet
her co-workers are provided access.
Frequently, complainant is not informed of the time and place of
meetings and events scheduled by her supervisors.
Complainant is regularly warned/threatened that if she takes any
time for lunch away from her workstation she will be docked, yet her
co-workers frequently take time to go to the bank/credit union or to
get lunch and are not docked or questioned when they are gone for more
than 30 minutes. In January 2002, complainant's supervisor permitted
her to go for an extended lunch with some co-workers and then on her
return she was told she had to take leave.
Complainant was discriminated against on the basis of disability when
during the months of January through April 2002, she was denied overtime.
Complainant was discriminated against on the basis of disability when
her supervisor continues to refuse to accommodate her need for a more
accessible parking spot.
Complainant was discriminated against on the basis of reprisal for
current EEO activity when she was marked Absent Without Leave (AWOL)
for .8 hours on April 23, 2002, and 1/3 hours on April 25, 2002.
Administrative Judge's Dismissal Order
Following the investigation of her complaint, complainant requested
a hearing before an EEOC Administrative Judge (AJ) on her complaint.
Complainant's case was assigned to an AJ at the EEOC Richmond Area Office.
On April 29, 2003, the AJ issued a Prehearing Scheduling Order informing
the parties that their respective prehearing statements shall be submitted
to the AJ on or before August 15, 2003.
The record reveals that the agency mailed its prehearing submission on
August 14, 2003.
The record contains an August 15, 2003 facsimile to the AJ from the
law office of complainant's attorney. The facsimile is signed by a
paralegal in the law office and states that the letter is a request
for a short extension in filing complainant's prehearing statement.
The letter states that complainant's attorney �was not feeling well this
morning and went to his doctor, who sent him to the emergency room with
the suspicion that it is appendicitis. � The facsimile stated that �[i]f
it is not appendicitis, he anticipates coming into the office when he
leaves the hospital and will fax the prehearing statement this evening,
or Monday at the latest.�
The record reveals that complainant's prehearing statement was submitted
on September 9, 2003.
On September 25, 2003, the AJ issued a Dismissal Order. In her Order
the AJ noted that she received complainant's August 15, 2003 facsimile
advising that her representative was ill that morning, but noting that
he would send by facsimile the prehearing statement that evening or no
later than Monday, August 18, 2003. The AJ states that complainant's
prehearing statement was submitted by facsimile on September 9, 2003,
without explanation. Thus, the AJ stated that in light of complainant's
failure to comply with the April 29, 2003 Order, her request for a hearing
is dismissed and her case is returned to the agency for a decision on
the record.
Complainant filed an appeal with the Commission postmarked December
2, 2003. In her appeal brief, complainant explains that her prehearing
statement was late because her attorney required surgery, specifically an
appendectomy, on the day the prehearing statement was due. She states her
attorney filed the statement thereafter within a relatively short time.
Complainant states that the AJ mischaracterized her attorney's August 15,
2003 facsimile. Complainant notes that in this facsimile, her attorney
stated that he was referred to the emergency room for suspicion of
appendicitis and noted that if he did not have appendicitis he would be
in that weekend to finish the prehearing statement. Complainant noted
that her attorney did have appendicitis and thus was unable to work that
weekend. Complainant stated that the AJ was well aware of the reasons
for the delay and attached an August 18, 2003 motion for a continuance
in another case (that the same AJ granted) which was scheduled for a
hearing on August 19, 2003. In the Motion for Continuance complainant's
attorney stated that he had surgery on Friday night, August 15, 2003,
to remove his appendix. Finally, complainant noted that the AJ did not
issue a show cause order or call to check the status of the prehearing
statement prior to dismissal of the present case.
In response to complainant's appeal, the agency argues that the AJ's
dismissal order was proper, the complaint was ripe for a decision
without a hearing in favor of the agency, and the final decision on the
complaint was not in error. With regard to the AJ's Order of Dismissal,
the agency notes that complainant's attorney contacted the AJ on the
same date the prehearing statement was due and explained that he became
ill that morning and proceeded to the emergency room with suspected
appendicitis, and that if it was not appendicitis he would return to
the office and send the statement by facsimile that evening or Monday,
August 18, 2003, the latest. The agency notes that complainant submits
a copy of a Motion for Continuance dated August 18, 2003, addressed
to the same AJ. The agency notes that in the Motion for Continuance,
signed by the attorney, the attorney stated that ��the surgery is not
particularly debilitating, he is restricted on his physical abilities
and is also on pain medication.'� The agency states one might wonder
why the Motion for Continuance could be prepared and sent via facsimile
but the prehearing statement could not also be sent the same date.
Further, the agency notes the passage of twenty-four days from the date
complainant's attorney submitted the Motion for Continuance in another
case and the submission of the prehearing statement in the subject case.
An AJ has the authority to sanction either party for failure without good
cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3);
EEOC Management Directive 110 Chapter 7, pp. 9-10 (1999). Such sanctions
may include an adverse inference that the requested information would
have reflected unfavorably on the party refusing to provide the requested
information, exclusion of other evidence offered by the party refusing
to provide the requested information, issuance of a decision fully or
partially in favor of the opposing party, or other actions as appropriate.
29 C.F.R. � 1614.109(f)(3). After a careful review of the record, the
Commission finds that the AJ did not abuse her discretion by dismissing
complainant's request for a hearing. The record establishes that the
Prehearing Scheduling Order notified parties that their prehearing
submissions were due on or before August 15, 2003. Further, the
Prehearing Scheduling Order states that failure to submit a Prehearing
Statement may result in dismissal of the complaint or request for hearing,
or other sanctions as deemed appropriate by the AJ. Complainant was
therefore aware that her failure to timely submit a prehearing statement
could result in sanctions. Although complainant did submit a request
for a short extension of time to submit her prehearing statement we note
that she did so on the afternoon of the last day the statement was due.
Additionally, although complainant's attorney requested a short extension
for submitting the prehearing statement we note that the statement was
not submitted until September 9, 2003. Further, we note complainant
fails to provide adequate explanation for her delay in submitting the
prehearing statement following August 18, 2003, the date her attorney
returned to work (as evidenced by the attorney's signed submission of
the August 18, 2003 Motion for Continuance).
On December 17, 2003, the agency issued a final decision on complainant's
complaint finding no discrimination. With regard to her disability
claim, the agency acknowledged that it regarded complainant as disabled.
The agency stated that the major duties identified in complainant's
position description included issuing temporary identification (ID)
badges to employees and non-employees, issuing temporary vehicle passes,
issuing photo ID badges to Activity employees, keeping daily reports
of such issuances, operating a computer terminal, rotating through the
Security Clearance Sections and performing the duties of each section,
and other duties as assigned. The agency stated, however, due to her
medical condition, complainant was assigned to the Video Control Room
and performed limited duties consisting of showing a 32-minute video and
preparing a monthly report. The agency stated that complainant was unable
to perform the major duties of her position with or without reasonable
accommodation and determined she was not a qualified individual with a
disability under the Rehabilitation Act.
With regard to her retaliation claim, the agency found complainant
established a prima facie case or reprisal in that complainant contacted
the EEO Office on March 3, 2002, and her supervisor (S1) stated he was
aware of her EEO contact when he charged her AWOL on April 23, 2002,
and April 25, 2002.
With regard to issue (a)(2), the agency stated that complainant's team
leader (TL) held discussions with complainant as well as with other
co-workers about coming to work on time. TL stated that she never
observed other employees who came in late but were not questioned about
it. TL recalled one incident when complainant's time was questioned
but denied reporting complainant to S1 for signing in on time when she
was actually late. S1 maintained that he never questioned complainant's
co-workers about their time because he never had similar problems with
them. He stated he never took disciplinary action against complainant.
He noted that he also discussed tardiness with other employees, including
individuals outside complainant's protected groups. The agency noted
that complainant's second level supervisor (S2) stated that complainant
was often late and prior to July 2001, he had discussions with her about
her tardiness. S2 stated he questioned other employees who were late
but not in complainant's presence. The agency noted in her rebuttal,
complainant reiterated her claims of discrimination, expressed her
disagreement with management's stated reasons, but provided no additional
substantive evidence in support of her claims.
With regard to issue (a)(3), TL stated that complainant did not need
internet access to perform the duties of her position and that no one
who worked with her had internet access. TL stated that employees
in Personnel Security needed internet access, as did the employees
complainant named; however, it was not needed in the Pass Office.
S1 stated he denied complainant internet access because she did not
need it to perform the essential functions of her job. S1 stated that
the employees named by complainant were not under his supervision but
noted that those employees were granted internet access based on their
job titles and duties. S2 and the Parking Manager corroborated TL and
S1's statements. The agency stated that complainant failed to show that
the duties she was performing in the Video Center required her to have
internet access or that her collateral tasks (FWP and the NNSY Disability
Program) required she have internet access. The agency found complainant
provided no evidence to rebut management's articulated reasons.
With regard to issue (a)(4), S1 noted that despite the late notice
complainant attended the September 7, 2001 meeting with the new Captain,
and also attended the case study meeting. S1 stated that he did not
know why complainant had not been informed of the meeting with the new
Captain because he was on vacation during this time. S1 stated that
he has held meetings with other employees in the organization that
did not require complainant's presence. S1 asserted that complainant
was not treated differently from other employees in the organization.
Additionally, T1 stated that as team leader she was occasionally called
to a meeting which did not require complainant's presence but stated
she was not aware of any scheduled meetings of which complainant had
not been informed. The agency found complainant failed to prove that she
was intentionally excluded from meetings which she was required to attend.
With regard to issue (a)(5), S1 denied that he threatened and/or warned
complainant that she would be docked if she took lunch away from her
workstation. S1 stated that although complainant and the other Pass
Office clerks worked a straight eight-hour shift with no lunch period,
he permitted them to take a break away from their workstations not to
exceed 30 minutes. In her rebuttal, complainant denied that she was
permitted to go out every day for 30 minutes. TL corroborated that
S1 allowed complainant 30 minutes away from her workstation to go out
to lunch. TL stated that in January 2002, she authorized complainant
to go on an extended lunch for her birthday, and S1 approved it.
Complainant admitted that she was not charged leave for her two-hour lunch
that day. Complainant also admitted that she was permitted to take more
than 30 minutes for lunch without being charged leave on July 9, 2001.
The agency found complainant failed to show that management threatened
or warned her against leaving her workstation for lunch.
With regard to issue (b), S1 acknowledged that complainant was denied
overtime for working in the Video Center. S1 maintained that when
complainant's workday ended at 2:00 p.m., other personnel from the
Pass Office assumed the Video Center duties, but not on overtime.
S1 stated that there were occasions where the Pass Office fell behind
for some unforseen reason, and a minimum of overtime was granted to two
clerks to get caught up on the work. S1 did acknowledge that other
employees were allowed to work overtime in the Video Center because
complainant had created the need by being late or not showing up for work.
S1 stated that the duties performed on overtime in the Video Center were
showing the video and ensuring personnel had signed in and he maintained
complainant could not perform those duties because she was not available.
In rebuttal, complainant denied S1's assertions and contended that if her
work was backlogged, she was not offered overtime to catch up on the work.
TL asserted that if anyone worked overtime in the Video Center, they were
also performing data input from the Pass Office, not just complainant's
work. TL stated that complainant never requested overtime. The agency
stated that because of complainant's medical condition, her duties were
limited to showing the video and preparing a monthly report. The agency
stated that only CW1, a White male, worked any overtime between January
and April 2002, and those hours were for the same job order numbers as
CW1's regular hours.
With regard to issue (c), the agency stated that complainant's former
parking space required that she go through a walkway where the gun vault
was located when she entered the building. The agency noted that a cage
was subsequently built for security reasons and only qualified weapons
personnel were permitted to go through that walkway. As a result, the
agency stated that it had to relocate complainant's parking space and
assigned her the first space behind the staff parking area, which enabled
her to exit her car, go up the ramp, and walk into the door to her office.
The agency stated that there was less than a twenty-foot difference in
the distance complainant had to walk after the relocation. The agency
pointed out that complainant's union representative confirmed that space
was within complainant's restrictions. S2 stated that complainant's
former parking space was unauthorized. S2 noted that when complainant
requested her former parking space, management, along with the Safety
Office and complainant's union representative, compared the former and
current spaces and determined that the former space was less accessible
and less safe than her current space.
In response, complainant stated that S2's reasons were false. She
contended that her current parking space was inadequate and contained
standing water, a metal grate over a water overflow, and a stone trash
can holder that was over four and a half feet tall. She stated that
because of a water drainage problem, her feet and crutch tip got wet.
Complainant stated that she made numerous requests for a parking space
closer to a door where there was a carpeted area, to keep her from
slipping and falling.
S2 explained that complainant's current parking space was more accessible
because she only had to negotiate a small curb to a walk-through rate
and a ramp that led right up to the Pass Office and her workspace.
S2 stated that from her former space, complainant had to negotiate a
curb and two small steps to get to the same place. S2 noted that all
of the hallways in complainant's building were linoleum. He disagreed
with complainant's assertion that she had to walk down a longer hallway
from her current parking space. TL and S1 corroborated S2 with respect
to the greater accessibility of complainant's current parking space.
The agency concluded that complainant failed to prove that management
refused to provide her a parking space as a reasonable accommodation.
Finally, with regard to issue (d), the agency stated that complainant
was charged AWOL on April 23, 2002, and April 25, 2002, for failure to
notify her supervisor she was going to be late prior to her starting time
of 6:00 a.m. S1 maintained that complainant had a history of tardiness
even prior to his becoming her supervisor. He noted that S2 had counseled
her on October 30, 2000, and again on February 7, 2001. S1 stated that
he counseled complainant on August 28, 2001, in the presence of her union
representative. S1 stated that he made complainant aware that her time
would be docked for tardiness, and he stated he advised her to properly
notify her supervisors in a timely manner when she had a problem getting
to work. S1 explained that he did not dispute complainant had a flat
tire on April 23, 2002; however, she failed to notify TL until 6:45 a.m.
In rebuttal, complainant claimed that the counseling was a 60-day
verbal warning that her time would be docked if she did not improve her
tardiness. Complainant denied that she committed any infractions after
she was counseled on August 28, 2001. S1 noted that he had previously
charged complainant AWOL on six occasions from March 27, through August
16, 2001. He also explained that after the August 28, 2001 counseling,
he charged complainant AWOL on September 18, and December 10, 2001.
The agency noted that complainant offered no evidence to refute that she
was AWOL on those dates or to show that she was charged AWOL because of
her protected EEO activity.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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. at 802; 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). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Further, construing the
evidence to be most favorable to complainant, we note that complainant
failed to present evidence that any of the agency's actions were
motivated by discriminatory animus toward complainant's protected classes.
Regarding the claim in issue (c) that complainant was denied a reasonable
accommodation, we find that the agency has shown that complainant was
reasonably accommodated by her parking space. Complainant has failed
to show how the parking space was inadequate to accommodate her claimed
disability. Furthermore, we do not address in this decision whether
complainant is an individual with a disability.
Accordingly, the agency's final decision finding no discrimination
is AFFIRMED.
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
July 29, 2005
__________________
Date
1The record reveals that complainant withdrew
issue (a)(1) from consideration during her September 26, 2002 deposition.