01A23774
03-04-2003
Linda Hammond, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Linda Hammond v. Department of Veterans Affairs
01A23774
March 4, 2003
.
Linda Hammond,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23774
Agency No. 99-1064
Hearing No. 170-A1-8503X
DECISION
Complainant timely initiated this appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. At all times
relevant to the agency action at issue, complainant was employed at
the agency's Coatesville Medical Center in Coatesville, Pennsylvania.
Complainant alleges in her complaint that she was subjected to unlawful
discrimination, in the form of disparate treatment and harassment and on
the basis of an unspecified perceived disability, when, on February 14,
1999, she was reassigned to the position of Health Aide in the agency's
�Silver Spoon Program� (SSP).<1> Complainant also alleged that the
agency's practice of reassigning employees with injuries or impairments
to the SSP had a disparate impact upon African-American employees,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.
At the conclusion of the agency's investigation into her complaint,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding no discrimination. As for the disability
discrimination portion of her complaint, the AJ found that complainant
had failed to establish a prima facie case of disparate treatment because
there was no evidence that the agency regarded her as an individual with
a disability, as claimed.<2> The AJ further found that even if she had
found that complainant had established that she had been regarded as an
individual with a disability, there was no indication that she had been
treated differently than others outside her protected class. The AJ
also found that, even assuming complainant had established a prima facie
case, the agency had articulated legitimate, nondiscriminatory reasons
for its action. The AJ noted that an agency human resources official
had testified that the SSP was established for the purpose of providing
patients at the facility with timely feeding of their meals, as well as
to reduce workers' compensation costs for the agency. The AJ also noted
that agency officials testified that complainant had been placed in the
SSP out of concerns for her safety, based upon the number of injuries
she had sustained in the course of her employment with the agency.
The AJ also found that complainant had failed to prove the reasons
articulated by the agency were mere pretexts for unlawful discrimination.
The AJ also found that complainant failed to establish a prima facie
case of disability-based harassment, as the reassignment at issue
did not rise to the level of conduct sufficiently severe to support a
harassment claim. As for her disparate impact claim, the AJ found that
complainant failed to establish a prima facie case, because she failed
to present sufficient statistical evidence to support her claim that the
agency practice in question caused the exclusion at issue. For these
reasons, the AJ found that complainant failed to establish her claims.
The agency implemented the AJ's decision in full, and complainant
subsequently filed the instant appeal.
We note that, pursuant to 29 C.F.R. � 1614.405(a), all post-hearing
factual findings by an AJ will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.� Universal Camera Corp. v. National Labor Relations Bd.,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
In a claim such as complainant's allegation of disparate treatment based
upon disability, where, as here, there is an absence of direct evidence of
such discrimination, the allocation of burdens and order of presentation
of proof is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973); Presley v. United States Postal Serv.,
EEOC Request No. 05980656 (Sept. 20, 2001) (applying McDonnell Douglas
analysis to disability claims). First, complainant must 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.
Kimble v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22,
2001). Next, the agency must articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). If the agency is successful in meeting its
burden, complainant must prove, by a preponderance of the evidence,
that the legitimate reason proffered by the agency was a pretext for
discrimination. Id. at 256. However, the ultimate burden of persuading
the trier of fact that the agency intentionally discriminated against
complainant remains at all times with complainant. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Applying this analysis
to the instant matter, we find that the AJ's finding is supported by
substantial evidence in the record. The record evidence, as identified
by the AJ in her decision, supports the finding that, even assuming she
established a prima facie case of disability-based disparate treatment,
the agency articulated legitimate, nondiscriminatory reasons for its
actions which complainant failed to prove were mere pretext for unlawful
discrimination.
We also find that the AJ's finding regarding complainant's
disability-based harassment claim was supported by substantial evidence
in the record. Harassment 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); see also
Flowers v. Southern Reg'l Med. Servs., Inc., 247 F.3d 229, 235-36 (2001).
In determining whether a working environment is hostile, factors to
consider include the frequency of the alleged discriminatory conduct,
its severity, whether it is physically threatening or humiliating,
or a mere offensive utterance, and whether it unreasonably interferes
with an employee's work performance. Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc., No. 915.002, at 3, 6 (Mar. 8, 1994). We agree with
the AJ that the evidentiary record fails to show that the conduct at
issue�a single reassignment to another position within the agency, with
no evidence indicating an accompanying loss of pay or other benefits�was
itself sufficiently severe or pervasive to support her harassment claim.
We further find that the AJ's ultimate finding regarding complainant's
disparate impact claim is supported by substantial evidence in the record.
Accordingly, 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 and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We discern no basis to disturb the AJ's decision. Therefore, it is the
decision of the Commission to 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 4, 2003
Date
1 In her complaint, complainant also included sex as a discriminatory
basis for the alleged unlawful activity, as well as the additional
allegation that her duty hours were unlawfully changed because of her
race, color, sex, and disability. Complainant subsequently withdrew
her allegations pertaining to the basis of sex and the additional claim
relating to her duty hours.
2 Complainant did not claim to have an impairment which substantially
limited any major life activities, or to have a record of having such
an impairment. See 29 C.F.R. � 1630.2(g) (providing that �[d]isability
means, with respect to an individual�(1) a physical or mental impairment
which substantially limits one or more of the major life activities of
the individual; (2) a record of such an impairment; or (3) being regarded
as having such an impairment�).