Debora Spotts, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01a23852 (E.E.O.C. Oct. 27, 2003)

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