Geraldine S. W. Collins, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security,1 (U.S. Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity CommissionFeb 9, 2007
0120051005 (E.E.O.C. Feb. 9, 2007)

0120051005

02-09-2007

Geraldine S. W. Collins, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security,1 (U.S. Immigration and Customs Enforcement), Agency.


Geraldine S. W. Collins,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,1

(U.S. Immigration and Customs Enforcement),

Agency.

Appeal No. 01200510052

Hearing No. 330-A2-8080X

Agency No. I00C119

DECISION

On October 24, 2004, complainant filed an appeal from the agency's

November 19, 2004 final order concerning her equal employment opportunity

(EEO) complaint alleging 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 deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).

For the following reasons, the Commission AFFIRMS the agency's final

order.

At the time of events giving rise to this complaint, complainant worked as

an Asylum Officer, GS-903-12, at the Houston Asylum Office in Houston,

Texas. On June 8, 2000, complainant contacted an EEO Counselor and

filed a formal EEO complaint on August 7, 2000 (which she subsequently

amended), alleging that she was discriminated against on the bases of

race (African-American), disability (impairment: carpal tunnel syndrome)

and in reprisal for prior protected EEO activity (arising under Title

VII)3, when she was subjected to a hostile work environment and disparate

treatment, based on the following incidents:

(1) Between 1997 and April 2000, management subjected complainant to

sixty-eight incidents of harassment;

(2) On April 26, 2000, complainant's supervisor (S1) verbally harassed

and demeaned her;

(3) On June 1, 2000, S1 instructed her not to be late to work;

(4) On June 6 and 7, 2000, S1 denied complainant's request for union

representation;

(5) In July 2000, management accommodated her co-worker's disability while

management failed to accommodate complainant's physical disability;4

(6) On July 17, 2000, S1 issued a letter to complainant's doctor that

falsified documents and information;

(7) On July 21, 2000, a co-worker informed complainant that if she did

not provide information regarding her physical disability, she would

receive disciplinary action;

(8) On August 17, 2000, S1 required complainant's doctor to fax

complainant's medical records or complainant would be fired;

(9) On October 4, 2000, S1 became upset because complainant was using

a co-worker's office to conduct interviews;

(10) On November 8, 2000, complainant's physician discontinued treating

complainant's disability because of the alleged continuous harassment

by S1;

(11) On December 20, 2000, complainant was given a memorandum of

counseling for failure to properly report damage to her computer;

(12) On December 26, 2000, complainant's physical disability failed to

be accommodated with special office supplies;

(13) In 2001, complainant failed to be selected for additional training;

(14) In 2001, complainant was not allowed to work overtime to conclude

an interview while a co-worker was regularly permitted to do so;

(15) In March 2001, complainant received constant monitoring of her work

while a co-worker was not disciplined for his inability to perform his

duties;

(16) On April 2, 2001, complainant was forced to take on an extra

assignment for a co-worker; however, she did receive an appreciation

letter for her efforts on April 6, 2001;

(17) On April 19, 2001, only complainant was required to submit

documentation regarding long distance telephone calls that she made

during a circuit ride assignment;

(18) On May 23, 2001, S1 denied her request to bring her

disability-accommodating equipment to Miami to assist her in conducting

asylum interviews;

(19) On May 24, 2001, a supervisor repeatedly solicited contributions

from complainant;

(20) On July 23, 2001, complainant was scheduled to conduct asylum and

Nicaraguan Adjustment and Central American Relief Act (NACARA) interviews

after returning from her detail;

(21) On July 23, 2001, complainant became aware that a supervisor had

removed personal property from her office;5

(22) On August 1, 2001, complainant learned that two of her co-workers had

entered her office and removed boxes without her knowledge or consent;

(23) On August 27, 2001, a supervisor informed complainant that her

Continuation of Pay (COP) had not been authorized by the Department of

Labor;

(24) On September 5, 2001, complainant was assigned to pre-screen files

and was not permitted to conduct interviews; and

(25) Between October 29 and 31, 2001, complainant was not granted four

days to write her case reports as indicated in the Union Contract and

Officer's Performance Work Plan (PWP).

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing and the AJ held a hearing on June 26, 27, 30 and

July 1 and 7, 2003, and issued a decision on September 28, 2004.

In his decision, the AJ found that complainant failed to prove that

she was subjected to a hostile work environment based on her race, sex,

disability, religion or due to her prior EEO activity. The AJ noted that

he found no evidence of a racial or retaliatory motive. The AJ also noted

that it seemed that complainant initiated some of the problems she faced

in the office by being "combative with her supervisors." AJ Decision at

11. Under a disparate treatment analysis, the AJ found that complainant

failed to establish a prima facie case of discrimination. The AJ noted

that complainant's comparators are not similarly situated concerning the

incidents at hand. The AJ also found that management was not aware of

complainant's prior EEO activity at the times when incidents (1) through

(21) occurred. The AJ found however, that management was aware of such

activity when incidents (22) through (25) occurred. The AJ found that

complainant established a prima facie case of reprisal discrimination as

to those four issues only. The AJ further found however, that the agency

provided legitimate, nondiscriminatory reasons for its actions, which

complainant has not shown to be pretextual. As to disability, the AJ

noted that the facts show that complainant's alleged disability was only

temporary, and therefore, she is not protected by the Rehabilitation Act.

The AJ concluded by finding no discrimination. The agency subsequently

issued a final order adopting the AJ's finding that complainant failed

to prove that she was subjected to discrimination as alleged.

On appeal, complainant, through counsel, contends that "direct and

circumstantial evidence" of sworn affidavits and documentation of record

establishes a prima facie case of disparate treatment of complainant, as

well as a hostile work environment. Additionally, complainant focuses

on a few particular issues in this case, and explains why the agency's

actions were discriminatory. For instance, complainant contends that

she was subjected to sexual harassment when an Officer stood outside

of the bathroom while complainant was inside, waited for her to exit,

and then escorted her out of the building. Complainant contends that she

was subjected to religious discrimination when her religious inspirational

notes were removed from her office and office door. Complainant contends

that she was treated disparately when the dress code was not uniformly

applied to the White females who were in actual violation, unlike herself.

Additionally, complainant contends that when complainant asked for a

reasonable accommodation, the agency made an unprecedented transfer of

herself from a GS-12 Asylum Officer position to the position description

of a GS-0303-05 Asylum Clerk, which resulted in complainant not having

the opportunity for promotion, and not having the privilege to compete

for incentive awards, as did the other Asylum Officers. In response,

the agency requests that we affirm the final order.

Initially, we address the fact that the hearing was partially conducted

telephonically, without the objection of the parties.6 The Commission

has held that testimony may not be taken by telephone in the absence of

exigent circumstances, unless at the joint request of the parties and

provided special conditions have been met. Louthen v. United States

Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).7 Since the

facts of this case pre-date Louthen however, we will assess the propriety

of conducting the hearing telephonically, by considering the totality

of the circumstances. The witnesses who testified telephonically in

this case were complainant's Hispanic/Asian immediate supervisor, and

a former Asylum Officer (Black/Ethiopian). Both witnesses testified

to their belief that the Director of the Office discriminates against

minorities and or retaliates against individuals who engage in the EEO

process.8 First, we do not find that there were exigent circumstances

in this case for which a telephonic hearing was required. Nevertheless,

complainant has not pointed to, nor do we discern any specific issues

of credibility that might have been affected by the taking of these

two witnesses' testimony telephonically. Under these circumstances,

the Commission finds that the taking of the testimony telephonically

constituted harmless error. See Sotomayor v. Department of the Army,

EEOC Appeal No. 01A43440 (May 17, 2006).

The AJ found that complainant was not entitled to protection from

the Rehabilitation Act because she did not have a disability within

the meaning of the Act. However, even assuming that complainant was

disabled, she has not shown that at the relevant time she was a qualified

individual with a disability, which is also a requirement for coverage.

The HAO Director stated that there is no "light duty" in their office, and

basically asserts that complainant could not do the essential functions

of her Asylum Officer position of lifting, gripping, taking notes, etc.

Although complainant asserts that the agency made an unprecedented

(and discriminatory) transfer of herself from a GS-12 Asylum Officer

position to the position description of a GS-0303-05 Asylum Clerk

(which did not accommodate her disability), complainant has not shown

that she was qualified for her Asylum Officer position, or any other

vacant, funded position at the agency, and it is her burden to do so.

In addition, although complainant contends that the agency was slow

in providing her with reasonable accommodation, substantial evidence

of record indicates that she was provided with several items such as

ergonomic equipment, special pens, chair cushions and lumbar support,

and voice recognition software. Here, we find that complainant has not

proven that the agency violated the Rehabilitation Act.

As to the hostile work environment claim and disparate treatment claims,

the AJ's findings that complainant did not show that the actions were

based on her membership in a protected group, are supported by substantial

evidence in the record. Briefly, as to the claim that she was sexually

harassed when an Officer stood outside of the bathroom while complainant

was inside, waited for her to exit, and then escorted her out of the

building, we note that management has provided an explanation for this

action; namely, complainant was at work when she should not have been

there, and when the manager told her she needed to leave, she immediately

went to the restroom. He followed her there and waited for her, because

he could not leave until he was sure she had left the office. Substantial

evidence of record therefore, indicates that this incident was not related

to complainant's sex or intended to be sexual in nature. Complainant does

not contend that the manager entered the women's restroom.

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the agency's

final order.

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:

February

9,

2007

______________________________

__________________

Carlton M. Hadden, Director

Date

Office of Federal Operations

1 This complaint was originally filed with the Immigration

and Naturalization Service, formerly a component of the Department

of Justice. However, effective March 1, 2003, in accordance with the

Homeland Security Act, this complaint came under jurisdiction of the

Department of Homeland Security.

2 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

3 Complainant contends that she was subjected to reprisal for

participating in the EEO case of a co-worker.

4 Complainant's doctor stated that she could return to light duty with

limiting factors of "no gripping, typing or writing with hands."

5 Some of the property that was allegedly removed was complainant's

religious notes/posters. Complainant does not contend that she requested

to maintain religious notes/posters in her office as a religious

accommodation within the meaning of Title VII, or that such request

was denied. Complainant contends that a particular Supervisory Asylum

Officer (SAO) removed the notes in order to discriminate against her due

to her religious beliefs. See ROI, Exhibit 8, at 2. Complainant points

out on appeal that the SAO admitted on March 13, 2002, that he removed the

literature because no other Asylum Officer had non-work related literature

on their door. A review of the record also indicates that the SAO stated

that there were some posters on complainant's window which complainant

was asked to remove for security reasons, as they were blocking the view

into her office. Id. Either reason is a legitimate, non-discriminatory

reason. Although complainant contends that management's motivation was

discrimination, substantial evidence of record indicates otherwise.

6 Two of the thirteen witnesses testified by telephone. We note that

the mere lack of objection to the fact that the hearing was conducted

telephonically, is not dispositive. See Louthen v. United States Postal

Service, EEOC Appeal No. 01A44521 (May 17, 2006).

7 In Louthen, the Commission has promulgated its policy regarding the

taking of telephonic testimony in the future by setting forth explicit

standards and obligations on its Administrative Judges and the parties.

Louthen requires either a finding of exigent circumstances or a joint

and voluntary request by the parties with their informed consent.

When assessing prior instances of telephonic testimony, the Commission

will determine whether an abuse of discretion has occurred by considering

the totality of the circumstances. In particular, the Commission will

consider factors such as whether there were exigent circumstances,

whether a party objected to the taking of telephonic testimony, whether

the credibility of any witnesses testifying telephonically is at issue,

and the importance of the testimony given telephonically. Further, where

telephonic testimony was improperly taken, the Commission will scrutinize

the evidence of record to determine whether the error was harmless.

8 We note that the Director states that she is the individual who selected

complainant for her Asylum Officer position in January 1997.

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01A51005

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036