0120060915
10-25-2007
Deborah W. Howard, Complainant, v. Charles F. Conner, Acting Secretary, Department of Agriculture, Agency.
Deborah W. Howard,
Complainant,
v.
Charles F. Conner,
Acting Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200609151
Agency No. 990649
Hearing No. 100-2004-00210X
DECISION
Complainant filed an appeal from an agency's final action finding no
discrimination with regard to her complaint. In her complaint, dated
May 4, 1999, complainant, an Administrative (or Executive) Assistant,
GS-10, at the agency's Departmental Administration (DA) Management
Service, alleged discrimination based on race (Black) and disability
(inoperable lumbar disease) when:
1. Just prior to March 30, 1998, while out on sick leave, the terms
and conditions of her employment with DA were changed without her
notification or knowledge, leading to her being improperly detailed out
of DA on March 30, 1998;
2. Since 1997, to the present, she has not had proper performance
standards or a position description; since March 1998, she has not had
proper documentation for her detail to the National Resources Conservation
Service (NRCS); and since November 1998, she had not been assigned to
perform specific duties;
3. On March 4, 1999, upon reporting to her detail location, she was
subjected to harassment by her new supervisor; and,
4. From January 1999, her request to return to DA was denied.
The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On August 17, 2005, the AJ, after a hearing, issued a decision finding no
discrimination, which was implemented by the agency in its final action.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, the AJ determined that, assuming arguendo that complainant
had established a prima facie case of discrimination, the agency
articulated legitimate, nondiscriminatory reasons for the alleged actions.
The AJ noted that in 1998, complainant became ill and underwent extensive
back surgery. Complainant suffered from a back disease which required
her to utilize an office chair with lumbar support. She had difficulty
stooping, sitting or walking for long periods of time, and could not
lift more than 10 pounds.
The AJ noted that complainant testified that she went on extended
sick leave beginning January 13, 1998, which was not due to her back
problems, but due to something else (not specified). In March 1998,
while complainant was on leave, the DA underwent some restructuring.
On March 30, 1998, complainant returned to work, but only for four
hours a day, in accordance with her medical restrictions. Upon her
return from leave, she only worked a few weeks and she was out again
for almost seven weeks after she had a relapse. On July 9, 1999,
complainant stopped working2 and applied for disability retirement.
The AJ pointed out that overall complainant had missed more than 80%
of her work time during her last three years of employment.
With regard to claim 1, the AJ found that complainant's detail to NRCS in
March 1998, was not an adverse employment action. There was no evidence
that complainant was treated differently than any other similarly situated
employee. The AJ stated that complainant previously had expressed an
interest in making this move. Specifically, when complainant learned
about her DA supervisor's move to become chief of NRCS in December 1997,
she indeed expressed her desire to move with him. In fact, all of the
supervisor's staff moved to NRCS with him.
With regard to claim 2, the AJ stated that while there was no evidence
that an official performance appraisal plan was ever created or given
to complainant, she did receive a performance appraisal during the
time she worked at NCRS. Although she did not like the appraisal, and
refused to sign it, it was nevertheless issued. Complainant does not
dispute the foregoing statements on appeal. The AJ also indicated that
complainant's supervisor at NCRS testified that she was assigned work
commensurate with her grade. However, since complainant was absent for
extended periods of time, she was given less work to do.
With regard to claim 3, the agency stated that since complainant
was unhappy at NCRS, she was reassigned to an identified supervisor,
an Executive Assistant for the Support Services Bureau with Senior
Executives. Complainant and this new supervisor never met before and
when she reported to him on March 4, 1999, he told her to "get out."
Complainant felt the new supervisor was very rude. Complainant testified
that the Deputy Chief of Management of NCRS had assigned her to this new
supervisor without checking with him first and that the new supervisor
had already hired another person for the position to which complainant
was to be reassigned. The AJ, noting that after this incident complainant
never saw this new supervisor again, found that this offhand comment and
isolated incident of offensive conduct did not constitute a hostile work
environment.
With regard to claim 4, the AJ stated that after complainant had been
reassigned to NCRS, there were no permanent positions available for
her back at DA. The AJ noted that when complainant's supervisor was
reassigned to NCRS, he took all of his staff with him and their prior
positions in DA were, in fact, moved with them.
The AJ stated and we agree that complainant failed to show by a
preponderance of the evidence that the agency's proffered reasons were
pretextual. Upon review, the Commission finds that the AJ's factual
findings of no discriminatory intent are supported by substantial evidence
in the record. Assuming (without deciding) that complainant was an
individual with a disability, the Commission finds that complainant
failed to show that she was denied a reasonable accommodation or that
any agency actions were motivated by discrimination. Complainant does
not allege that she was required to perform her duties beyond her medical
restrictions.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
AFFIRMED because the AJ's decision is supported by substantial evidence.
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
10/25/07
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 On appeal, complainant indicates that her last day of work was April 2,
1998.
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0120060915
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036