0120103247
01-05-2011
Loretta E. Hicks, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Loretta E. Hicks,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120103247
Hearing No. 410-2008-00337-RPD
Agency No. 070023201511
DECISION
On July 30, 2010, Complainant filed an appeal from the Agency's June 22, 2010 final order concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Medical Officer (Family Practice), GS-15 at the Agency's Branch Health Clinic (BHC) facility in Atlanta, Georgia. The Agency employed Complainant under a thirteen-month contract, which began on September 18, 2006, and expired on October 18, 2007. The Agency did not extend Complainant's thirteen-month appointment.
Immediately after commencing work, Complainant accepted an assignment as the Senior Medical Officer (SMO).1 After the Agency hired Complainant, the Agency hired another Medical Officer (CW1). Due to difficulties in obtaining relevant information, Complainant experienced delays in obtaining her credentials; CW1 did not experience any delays because CW1 was a military reservist. As a result, CW1 began work prior to Complainant.
While CW1 possessed sufficient education and credentials to work in his capacity, CW1 had not engaged in the actual practice of medicine for more than two years. Therefore, the Agency put him under a Plan of Supervision (POS). Under the POS, the Agency asked Complainant to indirectly supervise CW1 and evaluate his performance. Pursuant to Complainant's assessment, the Agency accepted Complainant's recommendation that CW1 be sent for further training due to deficiencies in his performance.
On December 18, 2006, Complainant resigned her duties as SMO, citing a lack of "knowledge of Navy credentialing regulations [and] the experience to complete the SMO duties regarding credentials at this time."
In January 2007, during a mass casualty exercise at the facility, Complainant suffered a sprained ankle. As a result, Complainant required the use of crutches until June 2007. Complainant asserted that the injury exacerbated pre-existing medical conditions. Complainant notified the Agency of her injuries and requested various forms of accommodation, including preferred parking, the use of a restroom near a vacant office, keeping the hallway doors propped open, a temporary four-hour work schedule, and assignment of a medical assistant.
On May 24, 2007, Complainant filed the instant formal EEO complaint. Therein, Complainant claimed that the Agency subjected her to a hostile work environment on the bases of race (African-American), sex (female), disability (physical), and age (53) when:
1. Throughout her employment, Complainant was denied training;
2. Beginning in January 2007, the Agency denied Complainant reasonable accommodation;
3. On an unspecified date, CW1 harassed Complainant by allowing a door to slam in her face; and
4. Management forced Complainant to use personal annual or sick leave and Leave Without Pay (LWOP) during the period she worked a four-hour day.2
In addition, Complainant alleged that the Agency discriminated against her in reprisal for prior protected activity when:
5. On October 18, 2007, the Agency terminated Complainant's term appointment.
After 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). Complainant timely requested a hearing and the AJ held a hearing on February 5, 2009, and issued a decision on May 20, 2010.
In her decision, the AJ found Complainant did not establish a prima facie claim of hostile work environment with respect to Claims (1) through (4). Alternatively, the AJ found credible the Agency's explanations and accepted them as legitimate and nondiscriminatory. The AJ found, contrary to Complainant's assertions, that the Agency provided Complainant with thorough and complete training and did not deny any of her requests for training. The AJ also found that the Agency was not placed in a position to act upon Claim (3) because Complainant was unable to show she put the Agency on notice regarding the incident. Moreover, the Agency took appropriate corrective action when notified of CW1's unprofessional behavior; following his verbal outburst, the Agency formally counseled CW1. As to Claim (4), the AJ found that administrative mistakes occur constantly, and the Agency's request that Complainant use personal leave was not a function of her protected bases or an alleged hostile work environment. In finding no discrimination, the AJ determined that Complainant "produced no evidence that these actions or incidents occurred based on her membership in protected classes."
Further, the AJ agreed with the Agency's determination that Complainant did not have a disability as defined by the Americans with Disabilities Act. Accordingly, the Agency was not required to provide reasonable accommodations. Assuming for purposes of analysis that Complainant did possess such a disability, the AJ found that the Agency sufficiently provided accommodations.
Turning to Claim (5), the AJ found that, although Complainant established a prima facie claim of reprisal, the Agency articulated a legitimate, nondiscriminatory reason for Complainant's termination. Specifically, the terms of Complainant's contract dictated that her employment was to expire after thirteen months unless the Agency acted to extend her appointment. The Agency stated that it offered Complainant employment for thirteen months because the facility was scheduled for closure in anticipation of the Base Realignment and Closure (BRAC).3 The AJ noted that "the termination of [Complainant's] employment was set before she even reported for duty." Complainant argued the Agency sought to retain CW1 at Complainant's expense. However, the AJ determined that Complainant and CW1 were not similarly situated because CW1's appointment provided that it was not to exceed four years. Thus, when Complainant's appointment expired, CW1's appointment still had an additional three years to run.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant submitted her appeal without comment. In response, the Agency argues that the AJ's decision was proper.
ANALYSIS AND FINDINGS
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 Board, 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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
The AJ's post-hearing factual findings are supported by substantial evidence in the record. Thus, our focus turns on whether Complainant was subjected to discrimination as alleged.
Because this case involves circumstantial evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case with respect to Complainant's claims, however, because the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We agree with the AJ that Complainant fails to prove discrimination as alleged. The Agency either affirmatively denied Complainant's allegations or provided legitimate, nondiscriminatory reasons for each of its actions. Moreover, the incidents considered both together and separately do not rise to the level of an unlawful hostile work environment.
Claim (1)
The Agency supported its denial that it harassed Complainant by denying her training with documentation showing it provided Complainant with training whenever requested. Additionally, we note that part of Complainant's allegation is she was not provided training specific to her SMO duties. With regard to this allegation, the Agency demonstrated it did not have a formal SMO training program.
Claim (2)
For purposes of analysis only, we assume without finding that Complainant is a qualified individual with a disability within the meaning of the Rehabilitation Act. Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9(a). Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the agency failed to provide a reasonable accommodation.
A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). "[T]he word 'accommodation' ... conveys the need for effectiveness." Id. "An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. See Reasonable Accommodation Guidance.
Nonetheless, Complainant's allegation in Claim (2) fails because she cannot demonstrate by a preponderance of the evidence that the Agency failed to provide her with reasonable accommodations. While Complainant sought to park in the ambulance bay or in an area where picnic tables were provided for the employees' use, the Agency offered her the use of disability parking near an entrance that had a ramp and automatic doors. Additionally, the Agency granted Complainant's request to work four hour days. We cannot find the Agency's offer of accommodations to be unreasonable. Although protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See Reasonable Accommodation Guidance, Question 9.
Claim (3)
Complainant acknowledges that she did not formally complain of the incident comprising Claim 3 to her supervisors. We determine that the AJ properly found that in this instance, the Agency was incapable of taking any action to correct a potentially hostile environment if the environment is not made known to it.
Claim (4)
During the hearing, the Agency offered a witness from OWCP to testify that systemic problems resulting from gaps in communication between OWCP, an independent office within the Department of Labor, and federal agencies nationwide frequently result in overpayment. The witness testified that many agencies believe that an OWCP claimant will not want to suffer gaps in payment while waiting for his OWCP claim to be approved. Thus, agencies incorrectly suggest that the claimant use personal leave until the OWCP claim is approved.4 Complainant is unable to show that the Agency's actions were not the result of generalized confusion, as reflected in the testimony of the OWCP witness, but rather arose out of a discriminatory intent to harass her. Therefore, we cannot find discrimination with regard to Claim (4).
Claim (5)
The Agency contends that it was not hiring permanent employees because the Branch Health Clinic (BHC) was slated for closure under BRAC; it would be imprudent to hire a permanent employee and then implement burdensome Reduction-in-Force (RIF) procedures. According to the Agency, the course of action that made the most business sense was to hire employees on term contracts and extend the contract if necessary depending on BHC's status under BRAC. Complainant was the only medical officer to accept a thirteen-month term contract. All others declined it. Following Complainant's acceptance, the Agency made a business decision to increase the contract term length in hopes of attracting additional applicants. They succeeded when CW1 accepted a four-year term contract.
When Complainant's contract was about to expire, the Agency evaluated its status with respect to BRAC. At that time, BHC was scheduled to close in 2010. CW1 had been appointed to a four-year contract, set to expire in 2010. The Agency determined that BHC did not need two medical officers; one officer would suffice. Thus, based on the needs of the Clinic, Complainant's appointment was not extended and automatically expired by its terms.
Complainant's sole argument in support of pretext is that the Agency permitted her contract to expire in favor of retaining CW1. However, CW1 is not an appropriate comparable employee; His contract had not expired. The Agency was not required to make a decision favoring one employee over another. The record does not reveal any other evidence tending to establish by a preponderance of the evidence that the Agency's proffered reasons are pretext for discriminatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
January 5, 2011
__________________
Date
1 The Commander of BHC testified that the SMO "serves as an adviser . . . someone certainly you could turn to for issues of any medical issues, issues of patient treatment, emergency treatment, anywhere in the clinic where you can advise the management on any variety of medical conditions or scenario."
2 As a result of the alleged Agency action, Complainant received compensation from both the Agency and Office of Worker's Compensation Programs (OWCP), which resulted in an overpayment.
3 A witness from the Agency's human resources office testified that BRAC resulted in several facilities being designated for closure. The Branch Health Clinic (BHC) was one of those designated for closure.
4 The witness also testified that the proper procedure is to enter LWOP for OWCP purposes, which would not result in an overpayment. However, this procedure is complicated and often results in confusion.
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0120103247
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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