0120052581
09-14-2007
Kristina A. Pruett, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Kristina A. Pruett,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120052581
Agency No. WGS03012
DECISION
On February 15, 2005, complainant filed an appeal from the agency's
January 13, 2005, final decision concerning her equal employment
opportunity (EEO) complaint alleging 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 deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission REVERSES in part the agency's final decision.
ISSUES PRESENTED
The issues presented by this appeal are whether the agency regarded
complainant as disabled because of its knowledge of her genetic
information and whether it retaliated against complainant because she
engaged in protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Editorial Assistant at the agency's Sacramento District Office
of the Geological Survey in Sacramento, California. In December 2000,
complainant had genetic testing for cancer after her mother died of
breast cancer in 1999. Her sister had survived breast cancer in 1981.
Complainant's genetic test was positive for the gene known as BRCA 2
which caused her to be at a greater risk for breast and ovarian cancer.
Complainant, following the advice of her physician, underwent several
medical procedures that are set forth in the record. She was off
from work for six weeks until January 29, 2002. Subsequently, she
was required to take six weeks leave after a procedure in August 2002.
Complainant participated in the leave share program because she did not
have enough leave to cover her time off. At this same time, the agency
placed complainant on leave restriction because she had a negative
leave balance. Thereafter, complainant had surgery on December 18,
2002, and returned to work on February 3, 2003.
On March 27, 2003, complainant contacted an EEO Counselor and filed a
formal EEO complaint on May 5, 2003. Complainant filed a request to
amend her complaint which the agency accepted for investigation on March
12, 2004. Complainant alleged that she was discriminated against on
the basis of the agency's knowledge of her genetic information (genetic
mutation, BRCA2 for cancer), its perception that she is disabled, and
in reprisal for engaging in protected EEO activity when:
1. she was subjected to a hostile work environment from April 2000 until
her forced resignation in December 2003;1
2. she was forced to accept a new position description with receptionist
duties in April 2003;
3. her supervisor disclosed her EEO activity to her co-workers at a
meeting in April 2003 which contributed to the hostile work environment;
and
4. she was constructively discharged when she resigned her position in
December 2003.
At the conclusion of the investigation, the agency provided complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with complainant's request, the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b) concluding that complainant failed to prove
that she was subjected to discrimination as alleged.
In its final decision, the agency determined that complainant was not
disabled within the meaning of the law because she failed to establish
that she had an impairment which substantially limited her in a major
life activity. In addition, the agency found that although it was
aware of complainant's genetic information, it did not act based on
that knowledge and instead, it had legitimate reasons for its actions.
For instance, the agency found that it did not deny complainant a
promotion or selection to a higher level position as an Editorial
Assistant because there was no such position available.
Addressing complainant's claim that the agency retaliated against
her by placing her on leave restriction, the agency found that it was
customary to place employees with a negative leave balance on leave
restriction until such time as they obtained a positive leave balance.
At the time of its action, the agency contended that complainant had a
negative leave balance of 80 hours.
CONTENTIONS ON APPEAL
Complainant argued on appeal that the agency's actions were discriminatory
based on its knowledge of her genetic condition and because she engaged
in protected EEO activity. She argued that the agency's final decision
ignored the statements of two supporting witnesses who stated that the
workplace was hostile and tainted by discriminatory animus. Complainant
cited to evidence of a meeting called by her first line supervisor, S1,
in which he discussed complainant's EEO complaint. Complainant contends
that this evidence was proof that S1 retaliated against her by having
her demoted to the receptionist position and by having her placed on
leave restriction. The agency submitted no additional comments on appeal
and requested that the Commission affirm its final decision.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
In this case, complainant claims that the agency regards her as disabled
because of its knowledge that she has a genetic marker which places her
at a higher risk for contracting breast and ovarian cancer. She claims
that the agency harassed her and took adverse action against her based
on its knowledge of this genetic information and its perception that she
is disabled. For purposes of our analysis, the Commission will assume,
without specifically deciding, that complainant is a qualified individual
with a disability within the meaning of the Rehabilitation Act.2
Even assuming that complainant has established she is disabled within the
meaning of the statute, the agency presented legitimate reasons for each
of the allegations raised. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001). In order to satisfy her burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id.
We note first that according to complainant's own testimony, she
had genetic testing and was informed of her genetic information in
December 2000. This occurred after the alleged selection for an
editorial assistant position in April 2000. Report of Investigation
(ROI), Exhibit 5 at 11. Therefore, even if we assume that a selection
for an Editorial Assistant was made as complainant contends, by her
own account, the agency's selection could not have been based on its
knowledge of her genetic information because it occurred before she
was aware of her condition. Complainant claimed that S1 labeled her
"unreliable" because of her disability which in turn prevented her from
getting a better position. However, we are persuaded by S1's statement
that he made this statement because of complainant's frequent absences
from work and that other employees were often required to substitute
for her. Complainant did not dispute that she had many absences due
to her surgeries, and treatment for sinus infections which placed an
additional burden on her co-workers and supervisors.
Regarding complainant's claim that she was unfairly placed on leave
restriction in August 2002, complainant contends that the agency's action
was based on its knowledge of her genetic information. However, based
on complainant's own testimony, she was placed on leave restriction
prior to the leave she requested for surgeries related to her genetic
condition. The record is undisputed that complainant had a negative
leave balance and that this was the basis for imposing leave restriction.
There was no evidence that any management official responsible for this
decision harbored a discriminatory animus based on their perception that
complainant is disabled. Rather, the record disclosed that the agency
approved all of complainant's requests for leave concerning treatment for
her genetic condition and for participation in the leave share program
which allowed her to obtain treatment for her medical condition.
Complainant also failed to rebut the agency's reasons for reassigning
her to a position which required her to perform receptionist duties in
addition to her normal editing responsibilities. That is, the person
occupying that position had been moved to another position, there was
reduced funding for the Reports Unit and there was less editorial work.
Moreover, there was no evidence that the agency's decision to reassign
her was because of her membership in a protected class.
Retaliation Claim
We turn now to complainant's claim that the agency retaliated against
her and created a hostile work environment. In her reprisal claim,
complainant may establish a prima facie case of reprisal by showing that:
(1) she engaged in protected activity; (2) the agency was aware of
the protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973)); Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request
No. 05960473 (November 20, 1997). Complainant must show that a reasonable
employee would have found the challenged action materially adverse,
"which in this context means it well might have 'dissuaded a reasonable
worker from making or supporting a claim of discrimination. Burlington
Northern and Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 (2006).
Applying these principles, the record reflects that complainant's
co-worker (E), stated that S1 held a meeting of the Reports Unit
and informed the group that an EEO complaint had been filed. ROI,
Exhibit 12 at p.8. E related that S1 told the employees that they had
to back him up or they would be "stuck" with another supervisor. Id.
Another employee (E2) heard about the meeting and understood that
S1 wanted employees to help him with information. The Commission
finds that S1's action was reasonably likely to deter complainant or
other employees from engaging in protected EEO activity. Even though
the incident may not have directly affected complainant's terms and
conditions of employment, S1's actions had the potential of interfering
with the EEO process. Burlington Northern at 2407 (the anti-retaliation
provision is not limited to actions affecting employment terms and
conditions). S1's action inviting employees to aid him in defending
against complainant's EEO complaint communicates his displeasure with her
EEO activity and potentially with those who did not act to assist him.
Thus, we conclude that S1's actions constituted a violation of the
anti-retaliation provisions of the Rehabilitation Act.
Addressing the other incidents of alleged retaliation, the record
reflects that complainant's only documented protected activity occurred
in March 2003, after the time that many of the agency's actions had
already taken place. The Commission finds that much of the activity
in question took place before complainant engaged in protected EEO
activity and could not have been motivated by retaliation. For instance,
complainant claimed that the agency retaliated against her by reassigning
her to the receptionist position, but the record demonstrated that this
decision was made in December 2002, before complainant had engaged in any
protected EEO activity. Similarly, the agency's placement of complainant
on leave restriction in August 2002 preceded complainant's EEO activity.
Discussions regarding her position description took place in early 2003
before she sought EEO counseling. Therefore, with respect to these
incidents of alleged adverse treatment, complainant has failed to show
that there was a nexus between the agency's actions and her protected
EEO activity.
Hostile Work Environment
We turn now to complainant's claim that the agency's actions created
a hostile work environment to such an extent that she was forced to
eventually resign her position. In other words, complainant argues that
her resignation was a constructive discharge. In order to establish
that she was constructively discharged from her position, complainant
must show: (1) that a reasonable person in her situation would have
found the agency's actions intolerable; (2) that the agency's actions
were discriminatory; and (3) that her resignation resulted from the
agency's actions. See Malpass v. Department of Veterans Affairs,
EEOC Request No. 05920527 (July 20, 1992). We have already concluded
that complainant failed to show that the incidents discussed above
were motivated by her membership in a protected class. Therefore, as
a matter of law, they cannot be part of complainant's claim of hostile
work environment. However, complainant alleges other incidents created
a hostile work environment. After a review of the record, we are not
persuaded that S1's actions resulted in a hostile work environment.3
In this claim, complainant maintained that after S1 informed her
co-workers about her EEO complaint, her co-workers refused to fill in for
her at the receptionist desk. She claims that this created an intolerable
working environment which gave her no choice but to resign from her
position. However, the record reveals that the employees assigned to
relieve her from the receptionist desk stated that complainant often
displayed animosity towards them, and was unpredictable in her lunch
and break schedule. Despite complainant's claim that her supervisor
(S2) failed to take reasonable steps to address her co-workers behavior,
the record discloses that she sent an e-mail to employees addressing the
schedule of breaks and lunch hours for those assigned to the receptionist
desk.
The Commission finds that the preponderance of the evidence does not
reflect that complainant was subjected to a hostile work environment
sufficient to result in a constructive discharge. The evidence does
not reflect that complainant's co-workers were motivated by retaliation
for her EEO activity, but that complainant's own actions contributed
to their conflicts. Therefore, we conclude that complainant's claim of
hostile work environment is unfounded and it must fail.
The Commission does conclude that S1's action of holding a meeting with
complainant's co-workers was reasonably likely to deter complainant and
her co-workers in pursuit of potential EEO claims and as such it violated
the anti-retaliation provisions of the Rehabilitation Act.
CONCLUSION
Based on the foregoing analysis and after considering the statements
of complainant on appeal, the Commission concludes that complainant
failed to establish discrimination based on the agency's knowledge of
her genetic information. We conclude that the agency' retaliated against
complainant for her protected EEO activity and we direct the agency to
take remedial action as set forth below. For these reasons, we affirm
in part and reverse in part the agency's final agency decision.
ORDER (C0900)
The agency is ordered to take the following remedial action within 45
days of the date this order becomes final:
1. Consider taking disciplinary action against S1 for the discriminatory
actions perpetrated against complainant. The agency shall report
its decision. If the agency decides to take disciplinary action, it
shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. The Commission does not consider training to
be disciplinary.
2. Require S1 to take 8 hours of training in the provision of the
Rehabilitation Act prohibiting retaliation against employees; and
3. Post a notice as set forth below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Water Resources Division, Sacramento
District Office, Sacramento, California facility copies of the attached
notice. Copies of the notice, after being signed by the agency's duly
authorized representative, shall be posted by the agency within thirty
(30) calendar days of the date this decision becomes final, and shall
remain posted for sixty (60) consecutive days, in conspicuous places,
including all places where notices to employees are customarily posted.
The agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed
notice is to be submitted to the Compliance Officer at the address cited
in the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503 (a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
____9/14/07______________
Date
1 Complainant claimed that the hostile work environment consisted of
the following: she was denied selection for a position as an Editorial
Assistant GS-7 in April 2000; she was placed on leave restriction; she
was demoted to a position as receptionist; she was not given editing
assignments; she was not given back-up support in receptionist duties;
and her supervisor made comments about her health condition.
2 Under the Commission's guidance issued pursuant to Executive Order
13145, departments and agencies must not:
� engage in adverse employment actions on the basis of protected
genetic information or information about a request for,
or the receipt of, genetic services;
� request, require, collect, or purchase protected genetic
information about employees, with limited exceptions;
� maintain protected genetic information in general personnel
files, rather than in confidential medical files; or
� disclose protected genetic information about employees, except
in limited circumstances.
Applicants and employees in the Executive branch who believe that a
department or agency has violated a provision of the Executive Order may
be able to pursue a claim under the Rehabilitation Act. To successfully
assert coverage under the Rehabilitation Act, applicants and employees
first must establish that they meet the definition of being an individual
with a disability. EEOC Policy Guidance on Executive Order 13145: To
Prohibit Discrimination in Federal Employment Based on Genetic Information
(7/26/2000).
3 To establish a claim of harassment based on disability, or reprisal,
complainant must show that: (1) she is a member of the statutorily
protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). Complainant must also show that there is a basis for imputing
liability to the employer. Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors, EEOC Compliance Manual
No. 915.009, June 18, 1999.
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0120052581
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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