01990815
03-08-2002
Jennifer Buchanan, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Jennifer Buchanan v. Department of the Navy
01990815
March 8, 2002
.
Jennifer Buchanan,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01990815
Agency No. 9667001N02
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) 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. Complainant alleges she was discriminated against on
the bases of sex (female) reprisal (prior EEO activity) and disability
(Sciatica nerve exacerbated by pregnancy) when:
(1) the agency failed to accommodate her condition with a reassignment;
(2) the agency placed her on leave under the Family Medical Leave Act
and leave without pay without her consent; and
(3) the agency intentionally delayed the processing of her EEO complaint.
For the following reasons, the Equal Employment Opportunity Commission
AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that complainant, a Store Worker NF-4, at the
agency's Marine Corps Exchange Systems, Camp Johnson Exchange, Camp
Lejeune, North Carolina facility, filed a formal EEO complaint with the
agency on January 22, 1996, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.<1>
The AJ concluded that complainant failed to establish that preferential
treatment was given to the agency's employees who were not pregnant.
Therefore, there was no genuine issue in dispute and she was not subjected
to disparate treatment based on her sex or disability. She further
found that pregnancy is not a disability within the meaning of the
Rehabilitation Act and that complainant's complications related to her
pregnancy may have been an impairment but were not shown to substantially
limit any major life activity.
The AJ found that even assuming that the complainant had a disability
within the meaning of the Rehabilitation Act, she did not establish a
genuine issue of fact that the agency's actions were a pretext to mask
unlawful discrimination based on the fact that she was pregnant. The AJ
did not specifically analyze the complainant's claim of retaliation.
The agency's final decision modified the AJ's statement of facts not in
dispute stating that the complainant had requested a change in position
from bartender to waitress because of her doctor's orders restricting
her lifting. The agency granted her request. The agency further stated
that the complainant requested leave for the time period July 25, 1995
to August 21, 1995 due to her pregnancy but not for the subsequent time
period that she was absent. During the subsequent period, the agency
placed the complainant on leave under the Family Medical Leave Act and
then on leave without pay until her return to her employment in 1996.
The agency further stated that the complainant requested a position as a
cashier but her request was denied because there were no vacancies and
because it required excessive standing in violation of her physician's
restrictions. Based on these facts, the agency adopted the AJ's finding
of no discrimination.
On the issue of reprisal, the agency determined that the complainant
failed to establish a prima facie case because her only protected activity
of record consisted of her actions related to the instant complaint.
Based on this factor, the complainant failed to establish an inference
of discrimination based on her participation in protected EEO activity.
Even assuming the complainant had established a prima facie case, the
agency concluded that it stated a legitimate non-discriminatory reason
for its actions which the complainant failed to show was a pretext for
discrimination.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final decision.
ANALYSIS AND FINDINGS
The Equal Employment Opportunity 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
summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
The United States Supreme Court has stated that summary judgment is
appropriate where the trier of fact determines that, given applicable
substantive law, no genuine issue of material fact exists. Anderson
v. Liberty Lobby, Inc.,477 U.S. 242, 255 (1986). In ruling on a
motion for summary judgment, a court does not sit as a fact finder. Id.
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.
A disputed 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
under Title VII, an AJ may properly consider summary judgment only
upon a determination that the record has been adequately developed for
summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). Furthermore, the Commission has noted that when a party
submits an affidavit and credibility is at issue, "there is a need for
strident cross-examination and summary judgment on such evidence is
improper." Pedersen v. Department of Justice, EEOC Request No. 05940339
(February 24, 1995).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present sufficient evidence to raise an inference of
discrimination based on the complainant's sex or disability. The record
indicates it was undisputed that the complainant requested a change in
positions from bartender to waitress when she first became pregnant in
February 1995 and was granted such request. Thereafter, the complainant
suffered a miscarriage. She then took a position as a store worker.
She became pregnant again in June 1995. She was placed on a lifting
restriction by her physician and did not return to work until after she
gave birth the next year. There was no dispute that the complainant
was unable to work during this time period. Based on the complainant's
failure to request leave, the agency placed her on leave under the Family
Medical Leave Act and then on leave without pay.
Under the Pregnancy Discrimination Act (PDA), 42 U.S.C.� 2000e(k), which
was enacted in 1978, discrimination on the basis of "pregnancy, childbirth
or related medical conditions" constitutes sex discrimination under
Title VII. This act provides that for all employment-related purposes,
pregnant employees shall be treated the same as other employees similarly
situated with respect to their ability to work. See, e.g., Ensley -
Gaines v. United States Postal Service, 100 F.3d 1220 (6th Cir.1996).
The Appendix to 29 C.F.R. �1604.10, "Employment Policies Relating to
Pregnancy and Childbirth," states in pertinent part:
The basic principle of the Act is that women affected by pregnancy
and related conditions must be treated the same as other applicants
and employees on the basis of their ability or inability to work.
A woman is, therefore, protected against such practices as being fired,
or refused a job or promotion, merely because she is pregnant or has had
an abortion...If other employees who take disability leave are entitled
to get their jobs back when they are able to work again, so are women
who have been unable to work because of pregnancy.
Applying these principles, the Commission finds the complainant failed
to produce any evidence that she was treated less favorably than other
similarly situated employees with temporary disabilities. For this
reason, the AJ was correct to grant the agency summary judgment.
As for complainant's claim of disability discrimination, we note that
pregnancy itself is not considered to be a disability. Stewart v. United
States Postal Service, EEOC Request No. 05960071(December 18, 1996).
The Commission recognizes a limited circumstance in which complications
from pregnancy can substantially limit a major life activity, and
therefore rise to the level of a disability. See EEOC Compliance Manual,
902, pp. 9-10 & n. 10 (March 14, 1995). In this instance, however, there
was no evidence in the record which established that the complainant
had a complication which substantially limited a major life activity
on other than on a temporary basis. That is, the complainant suffered
low back pain during the course of her pregnancy but did not have a
permanent or long lasting condition. She was restricted from lifting but
only during the course of her pregnancy. According to the Commission's
policy statement, temporary conditions such as the ones at issue here,
are usually not considered to be substantially limiting of a major life
activity and, therefore, are not disabilities under the Rehabilitation
Act. Id.at p. 29. Therefore, we find that the complainant is not an
individual with a disability under the provisions of the Rehabilitation
Act. This being the case, the agency was not required to provide her
with a reasonable accommodation based on a disability.
The complainant alleged discrimination based on reprisal because she
contends the processing of her complaint was delayed for four months
before she received counseling. We affirm the agency's finding of no
discrimination on this issue. The record reflects that the complainant
failed to establish an essential element of her case by demonstrating
that she had participated in protected EEO activity prior to the actions
in question. Therefore, she failed to establish a set of facts from which
discrimination based on reprisal could be inferred. Moreover, to the
extent the complainant stated dissatisfaction with the processing of her
complaint, this is not the proper subject of a claim of discrimination.
29 C.F.R. �1614.107(a)(8).
CONCLUSION
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 decision.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 8, 2002
Date
1The agency requested summary judgment and the complainant objected,
asserting that the investigative record contained �conflicting factual
statements when addressing the issue of the motive...�