01a44646
11-04-2005
Gail Hailes, Complainant, v. Deborah Platt Majoras, Chairman, Federal Trade Commission, Agency.
Gail Hailes v. Federal Trade Commission
01A44646
November 4, 2005
.
Gail Hailes,
Complainant,
v.
Deborah Platt Majoras,
Chairman,
Federal Trade Commission,
Agency.
Appeal No. 01A44646
Agency No. 2004-1
DECISION
Complainant appeals to the Commission from the agency's May 17, 2004
decision finding no discrimination. Complainant alleges discrimination
on the bases of race (African American) and disability (asthma) when
she was subjected to a hostile work environment. The agency found that
complainant failed to establish, by a preponderance of the evidence,
that complainant was discriminated against. Complainant now appeals
the agency's May 17, 2004 decision.
Complainant alleges she was subjected to a hostile work environment on
the bases of race and disability when:
Management failed to take appropriate actions when: (a) on March 18,
2003, a co-worker sprayed hair spray in the office; and (b) on May 7,
2003, complainant reported a strong smell in the office that caused
irritation in her throat and triggered an asthmatic attack; and
Her supervisor: (a) excluded, removed, and limited her primary
responsibilities to eliminate opportunities for her professional growth
and advancement, including her supervisor's alleged statement that
she would limit complainant's work assignments to allow her to work on
union duties; (b) reassigned her responsibilities on the 224 Report to
another employee and said to complainant: �You will no longer be doing
the 224 Report, didn't you look at your performance plan,� in October
2002; (c) yelled at her regarding her coming to work without getting
permission because it was complainant's alternative work schedule (AWS)
day and allowed an accountant to look at her work on the 224 Report
and trash her notes and printouts; (d) reassigned her responsibilities
for posting daily deposits and the redress and premerger accounts; and
(e) failed to assign her work with an accountant on capital assets,
and redress and premerger accounts, and travel central account.
With regard to claim 1, complainant alleges that on March 18, 2003,
a co-worker (Ms. X) sprayed hair spray in the office; and on May 7,
2003, complainant reported a strong smell in the office that caused
irritation in her throat and triggered an asthmatic attack. The record
indicates that Ms. X and complainant had a long tenuous relationship
as co-workers. The record is replete with documentation from management
regarding �interpersonal conflicts� and �dispute resolution� as a result
of the relationship between complainant and Ms. X. Complainant alleges
that management did not take appropriate action when Ms. X sprayed
hair spray in the air. The record, however, indicates that management,
after the March 18, 2003 incident, talked to Ms. X and instructed her
not to spray hair spray in the office. Further, complainant admits that
her supervisor, after the incident, sent an electronic mail to staff
banning any type of aerosol spray in the office. Further, complainant
contends that it is her understanding, although she was not present,
that management held a meeting regarding the ban of aerosol sprays in
the office.
Similarly, after the event on May 7, 2003 when complainant reported
a strong smell, management took quick steps to remedy the situation.
Complainant told her supervisor that she was going to the nurse because
of an order that smelled like hair spray. Complainant's supervisor
investigated the smell. Further, complainant's supervisor sent electronic
mail to her chain of command, as well as the person in charge of the
building. Tests were run on the air vents and no problem was detected.
The supervisor again talked to Ms. X about the use of sprays or gels.
Ms. X denied using hair gels. There is no indication that the strong
smell continued. We find, with respect to claim 1, that management took
appropriate, timely steps to remedy the situation. We find, with regard
to claim 1, that complainant has failed to show, by a preponderance of
the evidence, that she was discriminated against on the bases of race
or disability. We make this determination without making a finding
as to whether complainant is an individual with a disability under the
Rehabilitation Act.
We note that complainant, during the investigation, indicates that
she is, for the first time, requesting a reasonable accommodation.
Complainant asserts that she is requesting a reasonable accommodation as
a remedy in the instant case. Complainant requests that she be placed
in an area that is free of toxins that would compromise her ability
to breathe freely. The record does not contain medical documentation
supporting complainant request. Further, once management was notified of
complainant's concerns, management implemented a ban of aerosol sprays
in the office. To the extent that complainant may be alleging denial
of a reasonable accommodation, we find the record does not support
such a claim. Complainant has failed to show that the agency did not
reasonably accommodate complainant's purported disability when banning
all aerosol sprays. We make this determination without making a finding
as to whether complainant is an individual with a disability under the
Rehabilitation Act.
With regard to claim 2, complainant alleges that she was subjected to
a hostile work environment when her work responsibilities were reduced.
Complainant alleges that her work assignments were changed when some of
her responsibilities were removed, including the 224 Report and duties of
posting daily deposits, redress, premerger accounts, capital assets, and
travel central accounts. The agency argues that complainant's duties were
not removed as a result of complainant's union duties or discrimination.
The agency argues that complainant's work load has not significantly
changed. Further, the agency asserts that the 224 Reports were given
to someone else so the other person could get experience in the area.
The agency argues that other work was offered to complainant which she
refused. Moreover, complainant's second in line supervisor testified
that some duties were changed in response to the needs of the Financial
Management Office. Some functions were eliminated or done electronically
instead of manually. We find complainant has failed to show that such
actions were based on her disability or race, and not the result of a
business decision.
Complainant further alleges that her supervisor yelled at her when
she came in on her AWS day to work on the 224 Report. The supervisor
testified that she did not yell at complainant. Further, the supervisor
testified that employees are not supposed to self schedule overtime.
Further, complainant was not supposed to be working on the 224 Report.
The supervisor testified that although she had the authority to send
complainant home, she allowed complainant to stay.
We find that complainant has failed to show that she was subjected to a
hostile work environment on the bases of her race or disability. We make
this determination without making a finding as to whether complainant
is an individual with a disability under the Rehabilitation Act.
The agency's 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
November 4, 2005
__________________
Date