01a34967
11-15-2004
Guadalupe Sprague, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Drug Enforcement Agency), Agency.
Guadalupe Sprague v. Department of Justice
01A34967
November 15, 2004
.
Guadalupe Sprague,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Drug Enforcement Agency),
Agency.
Appeal No. 01A34967
Agency No. D-02-3643
Hearing No. 360-A3-8217X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning her formal complaint of unlawful employment discrimination in
violation of 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 order.
ISSUE PRESENTED
The issue presented herein is whether complainant has proven by
preponderant evidence she was discriminated against on the basis of
disability (major depression and post traumatic stress disorder, fatigue,
insomnia, nightmares, gastrointestinal and related physical symptoms)
when she was reassigned, denied reasonable accommodation, and subjected
to a hostile work environment.
BACKGROUND
The record reveals that on August 8, 2001, complainant, an Intelligence
Information Development Specialist (IIDS), GS-0301-12, at the agency's
Intelligence Division, El Paso Intelligence Center (EPIC) in El Paso,
Texas, was assigned, along with two other employees, to survey an area
along the U.S.-Mexican border for drug trafficking activities. This was
a temporary duty assignment.
Sometime after complainant and her two co-workers arrived at the border,
a man approached their vehicle and asked what they were doing there.
When they explained they were the �good guys�, the man left but
returned a few moments later, this time with a gun. The man began
shouting obscenities and asked the three occupants out of the car.
Complainant showed the man her government credentials, but the man
insisted that they get off his property.
Upon returning to El Paso, Texas, complainant reported the incident to
her supervisor. During the report, complainant requested that in the
future, IIDS's be provided with bulletproof vests and training to learn
how to diffuse situations such as the one that occurred along the border.
The supervisor responded that the IIDS's did not need additional training,
and that if complainant believed she needed a bulletproof vest, he would
not send her on any more temporary duty assignments.
Once leaving the meeting with the supervisor, complainant spotted a
cartoon posted on the bulletin board which depicted the border incident.
Complainant reported this to her supervisor, who stated that he thought
the cartoon was cute and funny. Complainant removed the cartoon,
but later found it reposted. Complainant then reported the poster to
her second-line supervisor, who expressed sympathy for what complainant
had gone through. He suggested that she seek help through the agency's
Employee Assistance Program if necessary.
Unsatisfied with the responses of both supervisors, complainant spoke
with her third-line supervisor, EPIC's Director, about the incident
and the cartoon, at which point the cartoon was permanently removed.
The Director also spoke with the first-line supervisor and explained
to him how the border incident had traumatized complainant. Later,
the first-line supervisor apologized to complainant and indicated that
he was not aware how seriously the incident had affected her.
Afterwards, some of complainant's co-workers, including the two who
had been involved with the border incident, laughed and joked about
the incident. One of the two employees acted �macho� and claimed he
could handle anything. Several employees �hi-fived� about the cartoon.
No one ever teased complainant about the incident to her face but a few
co-workers told her that they heard she was very scared.
Complainant began to take leave during the evenings because she could
not be in the Radio Room, in which her normal workstation was located,
for a full eight hours a day due to the border incident. On September
17, 2001, complainant was temporarily detailed from the Radio Room to
the Joint Information Coordination Center (JICC) to serve as a Liaison
Officer due to staffing shortages. Complainant's supervisor stated
that the detail would allow complainant to not use as much leave and
get herself back together.
On October 11, 2001, complainant was diagnosed with major depression,
moderate single episode. On November 2, 2001, she was diagnosed with
major depression and post traumatic stress disorder, at which time her
psychiatrist recommended that she remain in the JICC. On January 7, 2002,
complainant informed the agency of her psychiatrist's recommendation.
The agency accepted the recommendation. Complainant also requested a
new supervisory change of command, which was not granted by the agency.
On November 2, 2001, complainant filed a formal complaint in which she
alleged what has been identified as the issue presented. The complaint
was accepted and at the conclusion thereof, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Consequently, the case was forwarded to the
appropriate EEOC District Office and assigned to an AJ.
Once the AJ determined that there were no material facts in dispute,
she issued a decision without a hearing in which she found complainant
had not been discriminated against as alleged. The agency's final order
implemented the AJ's decision. Complainant filed the instant appeal.
Complainant's contentions on appeal and the merits of her discrimination
claims are discussed below.
ANALYSIS AND FINDINGS
Standard for Decision Without a Hearing
The Commission's regulations allow an AJ to issue a decision without
a hearing when he or she finds that there is no genuine issue of
material fact. This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court's
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor.
Id . at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
On appeal, complainant, by and through counsel, argues that the AJ's
issuance of a decision without a hearing violated the standards for
summary judgment. Specifically, complainant's counsel stated that
the AJ erred when she determined that the survey of the border was in
complainant's course and scope of employment. Counsel argues that the
surveillance activities were not in complainant's position description,
but instead was a temporary duty assignment. Counsel also challenges the
finding that the border incident scared complainant more than it did the
other two employees. The basis of this challenge, according to counsel,
is that complainant was not merely �scared more,� but traumatized to
the point that she had to seek professional help. Counsel challenged
the AJ's finding that complainant's supervisors ignored complainant's
concerns about the cartoon by arguing that not only did they ignore
the concerns, but allowed the cartoon to be re-posted and thought it
was funny. The facts as stated by counsel are not different in any
substantive aspect as stated by the AJ. And even if they were, we find
they are not material to outcome of this case. Therefore, we find that
the AJ's decision to issue a ruling without a hearing was appropriate.
Disability Discrimination
To establish a prima facie case of disability discrimination under a
disparate treatment and/or a failure to accommodate theory, complainant
must demonstrate that: (1) she is an "individual with a disability"; (2)
she is "qualified" for the position held or desired; (3) she was subjected
to an adverse employment action; and (4) the circumstances surrounding the
adverse action give rise to an inference of discrimination. Lawson v. CSX
Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production
then shifts to the agency to articulate a legitimate, non-discriminatory
reason for the adverse employment action. Once this is done, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id.
Although we presume that complainant is a �qualified individual with a
disability,� we find that she has failed to prove a prima facie case of
discrimination regarding her reasonable accommodation claim. Once the
agency was on notice that complainant's psychiatrist recommended
that complainant remain in the JICC and not returned to the Radio
Room until she was released by her treating doctor to work in there,
the recommendation was accepted by management and complainant was
not required to work in the Radio Room against her doctor's orders.
It is not clear whether complainant's reasonable accommodation claim
concerns not being assigned a new supervisory chain of command, but it
is clear that the psychiatrist never recommended new supervisors for
complainant. Complainant never provided medical documentation to support
this request. Moreover, the Rehabilitation Act does not require agencies
to provide employees with new supervisors as a reasonable accommodation.
EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, No. 915.002 (October 17,
2002), at q. 33. Therefore, we find that complainant was not denied a
reasonable accommodation.
Regarding the initial reassignment to the JICC (pre-accommodation
request), the agency stated legitimate nondiscriminatory reasons for its
action, namely, that complainant was reassigned as a Liaison Officer due
to short staffing and so she would not have to use so much leave due to
the stress she was undergoing as a result of working in the Radio Room.
Complainant has not presented any information which suggests the agency's
stated reasons were a pretext for discrimination.
Hostile Work Environment
On appeal, complainant's counsel argues that the AJ's decision without a
hearing failed to address complainant's hostile work environment claim.
This claim was not a part of complainant's formal complaint, but instead
in a request for an amendment dated March 14, 2003. In an order dated
June 10, 2003, the AJ denied the request stating, in relevant part, that
some of the allegations named by complainant to support her hostile work
environment claim were not severe or pervasive enough to constitute
harassment. The AJ further stated that the �constant and repeated
taunting� endured by complainant as a result of the border incident
was not linked to complainant's membership in a protected class. In
addition to the cartoon incident and her supervisors' responses thereto,
complainant made mostly general statements about co-workers laughing about
the incident. She did indicate that some of her co-workers told her that
she looked like she came out of the situation okay. This apparently
upset complainant as she was traumatized by the incident, and believed
her co-workers were making light of her trauma. She stated that because
her co-workers refused to acknowledge the seriousness of the border
incident and the affect it had on her, she felt like they had branded
her an over-reactive female. While complainant may have felt that her
co-workers had branded her an over-reactive female, she failed to point
to any specific statements or acts on the part of those co-workers which
convinces the Commission that complainant was disparaged as a result
of her membership in a protected class, female or otherwise. In fact,
because the other two co-workers who experienced the border incident
were subjected to teasing and taunting as well, the evidence indicates
that the experiencing the incident itself, and not any protected bases,
was the motivating factor in concerning the taunting and teasing.
Upon examination of the complete record of evidence, we find that AJ's
disposition of this claim to be appropriate. Upon doing so, we note
that complainant does not challenge the sufficiency of the agency's
investigation; she merely argues that some of her issues were not
addressed. We feel compelled to make clear that although complainant's
hostile work environment claim was not addressed in the AJ's decision
of June 12, 2003, the matter was addressed in the AJ's order of June
10, 2003.
CONCLUSION
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
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 15, 2004
__________________
Date