01a22060
03-13-2003
Guadalupe C. Guerra, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Guadalupe C. Guerra v. Department of Justice
01A22060
3/13/03
.
Guadalupe C. Guerra,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A22060
Agency No. B-97-2264
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 a Legal Data Technician at the agency's Dallas, Texas facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on July 7, 1997, alleging that she was discriminated against
on the bases of national origin (Hispanic) and disability (asthma) when:
(1) she was forced to e-mail her arrival time at the office;
she was placed on leave restriction;
her request for advanced leave was denied;
management changed the office's locks after she resigned; and
she was subjected to a hostile work environment.
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. Complainant
initially requested a hearing, but later withdrew her request and asked
that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
she was an individual with a disability because she failed to articulate
how her asthma substantially limited a major life activity. Furthermore,
the agency found that its requirement that complainant notify management
as to her arrival time by e-mail did not rise to the level of an adverse
action. Assuming that complainant did establish a prima facie case of
discrimination, the agency found that it articulated a legitimate reason
for requiring complainant to notify management as to her arrival time,
namely, that all employees who worked an Alternative Work Schedule (AWS)
were required to do so in order to keep track of the time they arrived
to work. The agency also determined that complainant's allegation that
the agency changed the locks after her resignation did not affect a term,
condition or privilege of employment. Finally, complainant's leave
restriction issues were deemed necessary in light of complainant's leave
history, which represented excessive absences. As for complainant's
claim that she was subjected to a hostile work environment, the agency
determined complainant failed to establish that she was subjected to
work conditions that rose to the level of a hostile work environment.
Complainant makes no new contentions on appeal, and the agency asks that
we affirm its final decision.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
The Commission concurs with the agency's determination that complainant
failed to establish a prima facie case of national origin or disability
discrimination when she was asked to notify management when she arrived
to work. Specifically, we do not find that complainant presented
sufficient facts that would establish an inference of discrimination
because the matter alleged did not rise to the level of an adverse action.
Furthermore, we find the agency articulated a legitimate nondiscriminatory
reason for its action which complainant did not establish was pretext
for discrimination. Specifically, we find that complainant presented
sufficient evidence that would establish that the agency's reasons for
requiring AWS employees, like complainant, to report in each morning
were legitimate and not a pretext for discrimination.
Assuming that complainant is an individual with a disability, we agree
with the agency that it articulated legitimate nondiscriminatory reason
for placing complainant on leave restriction and denying her advanced
leave. The agency presented sufficient evidence to establish that
complainant took large amounts of leave, that she was probably unable to
make up with further advanced leave. Furthermore, complainant failed to
present sufficient evidence that the majority of her leave was related
to her asthma condition. Finally, the agency asked that complainant
provide medical documentation so that it could evaluate complainant's
leave restrictions, but complainant resigned soon thereafter. As such,
we find complainant failed to establish the agency's reasons for its
actions were a pretext for disability discrimination.
Finally, we will address complainant's harassment claim. Harassment
in the form of a hostile work environment is actionable only if the
harassment to which the complainant has been subjected was sufficiently
severe or pervasive to alter the conditions of his or her employment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077
(Mar. 13, 1997). To establish a prima facie case of hostile work
environment harassment in violation of Title VII or the Rehabilitation
Act, complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to unwelcome conduct related to
her membership in that statutorily protected class; (3) the harassment
complained of was based on her membership in that statutorily protected
class; (4) the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. Roberts v. Department of Transp.,
EEOC Appeal No. 01970727 (Sept. 15, 2000); McCleod v. Social Security
Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982).
After a review of the record, we do not find that complainant established
a claim of harassment since she failed to establish that any of the
agency's actions created an intimidating, hostile or offensive work
environment. Furthermore, complainant failed to establish that any of
the agency's actions were based on her membership in a protected class.
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 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
3/13/03
Date