01a23852
10-27-2003
Debora Spotts, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Debora Spotts v. Department of Transportation
01A23852
10/27/03
.
Debora Spotts,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A23852
Agency No. 1-01-1074
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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. 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 decision.
The record reveals that during the relevant time, complainant was
employed as an Administrative Officer at the agency's Logan Airport,
Boston, Massachusetts facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on June 27, 2001, alleging that
she was discriminated against on the bases of race (African-American),
color (Black), disability (left hemiplegic, carpal tunnel syndrome),
and reprisal for prior EEO activity when:
(1) she was not provided a reasonable accommodation in a timely manner;
she was accused of falsifying time and attendance; and
co-workers were allowed to tell jokes and make comments, while management
did little to alleviate the problem.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant was an individual
with a disability in that she suffered from partial paralysis on
her left side, as well as carpal tunnel syndrome in her right hand.
The agency determined that complainant's partial paralysis rendered
her substantially limited in a major life activity. The agency also
concluded that complainant was a qualified individual with a disability.
However, the agency found that complainant failed to establish
that she was denied a reasonable accommodation. In January 2000,
complainant presented the agency with a work station evaluation from
a rehabilitation counselor, who directed that the agency make several
changes to complainant's work station, including the provision of an
ergonomic chair, new keyboard tray, additional file cabinets, cordless
portable phone with headset, clerical support and a temporary part-time
schedule. Although complainant's main contention is that the agency
failed to timely provide the requested accommodations, the agency
determined that the bulk of complainant's request was provided within
a few months. Any delay was caused by the agency's desire to obtain
the correct equipment for complainant. Accordingly, the agency found
it did not violate the Rehabilitation Act.
With respect to complainant's claim that she was accused of falsifying
her time and attendance files, the agency determined that the issue was
moot, since the matter had been resolved. As for complainant's claim
of a hostile work environment, the agency found complainant failed to
establish that she was subjected to severe or pervasive conduct.
Complainant makes no contentions on appeal other than to correct a
collateral factual issue. The agency asks that we affirm the FAD.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
As a threshold matter, therefore, one claiming protection under the
Rehabilitation Act must show that she is a person with a disability
as defined therein. A person with a disability is one who has, has a
record of, or is regarded as having a physical or mental impairment that
substantially limits one or more major life activities. 29 C.F.R. �
1614.203(a)(1). Major life activities include caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1614.203(a)(3). In seeking an
accommodation, an employee must show a nexus between the disabling
condition and the requested accommodation. See Wiggins v. United States
Postal Service, EEOC Appeal No. 01953715 (April 22, 1997).
For purposes of further analysis, we assume, arguendo, and without
finding, that complainant established that she is an individual with
a disability and is entitled to coverage under the Rehabilitation Act.
However, we do not find that complainant established a violation of the
agency's duty to accommodate, despite the time it took for the agency to
obtain complainant's equipment. An employer should respond expeditiously
to a request for reasonable accommodation. EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship, EEOC Notice No. 915.002
at p. 22 (October 17, 2002). In determining whether there has been an
unnecessary delay in responding to a request for reasonable accommodation,
relevant factors would include: (1) the reason(s) for the delay, (2) the
length of the delay, (3) how much the individual with a disability and
the employer contributed to the delay, (4) what the employer was doing
during the delay, and (5) whether the required accommodation was too
complex to provide. Id. at footnote 38. After a review of the record,
we find that the agency did not act unreasonably when it spent several
months providing the accommodations, which were numerous. The record
revealed the agency spent time purposely selecting merchandise that would
accommodate complainant's needs. Most of what complainant desired was
accomplished within a few months except the part-time clerical help,
which required more time given its complexity.
Complainant remaining claims are essentially allegations that she
was subjected to a hostile work environment when she was accused of
falsifying time and attendance records, and when she was subjected to
jokes and comments from her co-workers. To establish a prima facie case
of hostile environment harassment, a complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
The harassment must have been "sufficiently severe and pervasive to alter
the conditions of complainant's employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
In the instant case, we find that complainant has failed to establish a
prima facie case of hostile work environment. Complainant alleges that a
co-worker wrote a note purportedly from complainant threatening to file an
EEO complaint if she did not get a certain training class. Furthermore,
complainant states that she was denied lunch breaks, was accused of
altering time and attendance logs, and received different treatment from
her co-workers after she requested a reasonable accommodation. After a
review of the record, we do not find that complainant established that
any of the conduct rose to the level of severe or pervasive conduct.
Nor was it proven that the actions complained of occurred because of one
of complainant's protected classes. Although we agree that the note was
not appropriate, we also find that the matter was dealt with immediately.
Accordingly, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
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
10/27/03
Date