01A10093
03-22-2002
Ellen E. Spillane, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Ellen E. Spillane v. Department of Transportation (Federal Aviation
Administration)
01A10093
March 22, 2002
.
Ellen E. Spillane,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01A10093
Agency No. 3-98-3024
DECISION
This case involves a complaint filed by Ellen E. Spillane (�complainant�)
against her former employer, the Department of Transportation (Federal
Aviation Administration) (�the agency�). Complainant alleged that
during her tenure as an Aviation Safety Assistant in the agency's Flight
Standards District Office in Orlando, Florida, the agency discriminated
against her (1) on the basis of her alleged disability (severe anxiety
and depression), by repeatedly harassing her over a two and one-half
year period; and (2) on the basis of reprisal, when an agency manager
(�Manager�) placed her on administrative leave after she had called an
EEO counselor. In her complainant, complainant was thus alleging that
the agency had violated Section 501 of the Rehabilitation Act of 1973
(�the Rehabilitation Act�), as amended, 29 U.S.C. � 791 et seq.<1>
The agency initially dismissed her complaint under 29 C.F.R. � 1614.107(a)
for failing to state a cognizable claim of employment discrimination.
Complainant appealed this decision. We � the United States Equal
Employment Opportunity Commission (�EEOC� or �the Commission�) � accepted
complainant's appeal and ruled that her complaint did state valid claims,
and therefore had to be remanded to the agency for a full investigation
of such claims. See Spillane v. Department of Transportation (Federal
Aviation Administration), EEOC Appeal No. 01982653 (Mar. 31, 1999).
Pursuant to this ruling, the agency then investigated complainant's
allegations, but ultimately issued another decision finding that
the agency had not discriminated against complainant, as she alleged.
Complainant filed a timely notice challenging this final agency decision
(�FAD�), which we docketed as this appeal. We are now issuing this
decision on the merits of complainant's claims under the authority granted
to us in 29 C.F.R. � 1614.405(a). After a meticulous review of all the
evidence contained in the record, however, we are unable to conclude
that any sort of unlawful employment discrimination was prohibited here.
We therefore conclude that the FAD at issue must be affirmed.<2>
Complainant details purported acts by agency management which
she believes created a hostile work environment and constituted
disability-based harassment. She notes, for example, that agency
supervisors were consistently humiliating and rude to her, and subjected
her to disparaging and hurtful comments (such as telling her �you're
mean,� �you're not answering the phones quick enough,� �the whole unit
doesn't like you,� etc.). Even assuming these incidents all happened
as complainant says they happened, though, we are not convinced that
the agency violated federal law here. It is true that supervisory
harassment of an employee because of the employee's disability can violate
the Rehabilitation Act (which protects federal workers from various
forms of disability discrimination). See, e.g., Flowers v. Southern
Regional Physician Services, Inc., 247 F.3d 229, 232 (5th Cir. 2001);
Fox v. General Motors, 247 F.3d 169, 176 (4th Cir. 2001); and Marker
v. United States Postal Service, EEOC Appeal No. 01992706 (Feb. 21,
2002). However, in order for a claim of disability-based harassment
to prevail, complainant must demonstrate that the harassment occurred
because complainant is disabled. See, e.g., McQueen v. Department of
the Navy, EEOC Appeal No. 01996484 (Mar. 8, 2002) (where we ruled that
to establish a claim of disability-based harassment, a complainant
must prove, among other things, that �the harassment complained of
was based on her disability�). Even assuming for argument's sake that
complainant was disabled, she has still not met her burden of showing
the requisite nexus between the agency's actions and her disability.
To the contrary, in an affidavit provided during the investigation of her
complaint, complainant explicitly admits that her purported disability
had nothing to do with the objectionable supervisory conduct in question.
See Complainant's Affidavit (Jul. 13, 1999), at 13 (where complainant was
asked �what indications led you to believe that your disability was the
reason that you received disparaging comments and inappropriate actions
during the two and a half year period� � to which she replied �[m]y
disability had no part in the incidents which occurred in the Orlando
FSDO�). This admission is fatal to her claim, and we therefore cannot
find the agency liable for any unlawful disability-based harassment on
these facts. See, e.g., Berg. v. United States Postal Service (Western
Area), EEOC Appeal No. 01993964 (Mar. 6, 2002) (where we refused to find
that disability-based harassment had occurred in part because, �[e]ven
assuming complainant's contention that she was perceived as mentally
disabled was correct, she failed to demonstrate that [the questionable
supervisory] actions were based on this factor . . .�).
Similarly, we see no reason to hold the agency responsible for reprisal
discrimination either. The record reveals that on one particular day,
complainant conducted an allegedly loud telephone conversation with
an EEO counselor (during which complainant made derogatory statements
about how she hated her job and her supervisor, etc.). Complainant's
immediate supervisor was absent from the office, but Manager claims that
on this day he received complaints from complainant's co-workers about
the statements she had been making and about how she had been yelling
at someone on the phone, that he therefore called complainant into his
office to find out what the problem was, and that he subsequently sent
her home on administrative leave to calm down. Manager also contends
that he did not know that the conversation in question had been with
an EEO counselor, and that his decision to send complainant home was
based solely on his perception that her actions had disrupted the work
environment and that her abusive behavior might escalate if she was not
removed from the work place.<3>
Nevertheless, complainant apparently believed that the act of sending
her home after talking with an EEO counselor constituted unlawful
reprisal. Our regulations do clearly state that �[n]o person shall
be subject to retaliation for opposing any practice made unlawful
by . . . the Rehabilitation Act . . . or for participating in any
stage of administrative or judicial proceedings under� this Act.
29 C.F.R. � 1614.101(b). By calling an EEO counselor, complainant
was clearly participating in an administrative process designed to
protect her rights under the Rehabilitation Act (and other federal laws
prohibiting unlawful employment discrimination), and was thus engaging
in an activity shielded from retaliation. See Hashimoto v. Dalton,
118 F.3d 671, 680 (9th Cir. 1997) (noting that once an employee
in the federal sector has initiated contact with an EEO counselor,
(s)he has engaged in protected activity). However, we do not believe
Manager's act of sending her home constituted such unlawful reprisal.
Nothing in the record indicates that Manager knew (before sending her
home) who complainant was talking to at the time she was allegedly loud
and disruptive,<4> or that complainant herself ever told Manager (before
being sent home) who had been on the other end of the line.<5> On these
facts, we cannot conclude that the agency's decision to place complainant
on administrative leave was made for any reason other than the lawful
one articulated (namely, that Manager believed complainant's unsettling
conversation was disturbing the work place, and that her aggressive
behavior might even escalate). Therefore, because complainant has not
proven that the agency's legitimate explanation for sending her home
was a mere mask for a prohibited retaliatory motive, her reprisal claim
falls short. See, e.g., Martin v. Department of Justice (Immigration and
Naturalization Service), EEOC Appeal No. 01A05703 (Mar. 8, 2002) (where
we refused to find an agency liable for reprisal discrimination because
the complainant �failed to set forth probative evidence to support his
assertion that the agency's explanation was a pretext for retaliation�).
Accordingly, because complainant has not proven that any type of unlawful
retaliation or disability-based harassment was committed by the agency,
the FAD in question is hereby affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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 entitled
�Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 22, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Rehabilitation Act of 1973 was amended in 1992 to apply the standards
in the Americans with Disabilities Act to complaints of discrimination
by federal employees or applicants for federal employment.
2We are charged with reviewing this FAD de novo (or �anew�). See 29
C.F.R. � 1614.405(a). This essentially means that in deciding this case,
we are free to accept or reject the agency's factual and legal conclusions
at will. See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO MD-110�), at 9-15. Thus,
we have carefully reviewed the entire record before us in our attempt
to discern whether a preponderance of the evidence supports a finding
of unlawful discrimination here. See 29 C.F.R. � 1614.405(a). For the
reasons discussed below, we find that it does not.
3There is ample evidence in the record that this incident was but one in
a series of incidents in which co-workers and/or management complained
about complainant's unprofessional, disrespectful, and even profane work
place behavior (and for which complainant was disciplined).
4In his investigative affidavit, Manager states that on the morning in
question, �I was advised that [complainant] was creating a commotion in
her work area and yelling at someone on the telephone . . . . I later
found out that she was cursing at an H.R. employee in the regional
office.�) Complainant's Affidavit (Aug. 26, 1999) [emphasis added], at 4.
5The record does reveal, however, that once complainant's supervisor
learned of the incident, this supervisor sent complainant a memorandum
confirming her absolute right to participate in the EEO process, but
urging her to do so in a manner that does not disrupt co-workers or the
work place (and offering to provide her a private, quiet place to make
EEO phone calls, etc.).