01996484
03-08-2002
Margaret H. McQueen, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Margaret H. McQueen v. Department of the Navy
01996484
03-08-02
.
Margaret H. McQueen,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01996484
Agency No. 97-0020-4003
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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.; and Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant has shown by
preponderant evidence that the agency discriminated against her
on the bases of disability (Carpal Tunnel Syndrome) and reprisal
(prior EEO activity)<1> when: (1) her supervisors (the First-Line
Supervisor and the Second-Line Supervisor) did not take appropriate
action to correct her computer problems; (2) on September 28, 1996, the
Supervisors failed to take appropriate action to stop an employee from
the Management Information Systems (MIS) Department from harassing her;
(3) the Second-Line Supervisor harassed her when he came to her work
station and began shaking his finger at her as he talked to her about
her computer problems; and (4) the First-Line Supervisor told her to
continue processing orders even though he knew her computer was not
functioning properly.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Purchasing Agent at the agency's Air Station in Pensacola, Florida.
Complainant has Carpal Tunnel Syndrome which affected her ability to type
and caused her hand to go numb. The agency provided her with a Dragon
Dictate computer that enabled her to speak into the computer instead of
typing into it. Complainant claims that she has had problems with the
computer since she got it because of malfunctions. She alleged that the
Supervisor failed to take appropriate action to correct these problems
while her co-workers all had functioning computers albeit not the same
type of computers. On September 28, 1996, an employee from the MIS
Department was sent to complainant's office to correct the computer.
She claimed that he treated her like a child and spoke rudely to her.
Believing she was a victim of discrimination, complainant sought
EEO counseling and subsequently filed a formal complaint on December
11, 1996. At the conclusion of the investigation, complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
her claim of discrimination based on her disability and prior EEO
activity. As to the claim of disability discrimination, the agency
summarily determined that complainant is a qualified individual with a
disability covered by the Rehabilitation Act. The agency however found
that she failed to establish a prima facie case of discrimination. As to
unlawful retaliation, the agency concluded that complainant established
a prima facie case. The agency then found that the Supervisors provided
legitimate, nondiscriminatory reasons for its actions. As to claims (1)
and (4), the First-Line Supervisor indicated that each time complainant
had a computer problem, he would call the MIS Department to have it fixed.
The First-Line Supervisor also stated that when complainant reported such
computer problems, he told her to do other assignments while the problem
was being fixed. He indicated that complainant could do some of her
work to a certain point without the functions that were not working on
her computer. Responding to claim (2), the First-Line Supervisor stated
that complainant reported the incident with the MIS Department employee
and he discussed the matter with the employee in question. Finally,
as to claim (3), the Second-Line Supervisor denied shaking his finger at
complainant and indicated that he may have been pointing to her computer.
The FAD also concluded that complainant failed to establish pretext.
Although complainant provided an affidavit of a co-worker who stated
that the MIS employee spoke down to complainant, it failed to show that
the agency's reasons were pretext to mask unlawful discrimination.
Accordingly, the FAD found that complainant failed to establish her
claim of disparate treatment.
The FAD also found that complainant failed to establish a claim
of disability and reprisal harassment. In particular, the agency
determined that incidents alleged did not rise to the level of a hostile
work environment. Accordingly, the FAD concluded that complainant failed
to sustain her claim of harassment.
On appeal, complainant contends that the agency discriminated against
her for more than nineteen years. She also alleges that she has been
�blacklisted� due to her EEO activity. The agency requests that we
affirm its FAD.
ANALYSIS AND FINDINGS
Effective Reasonable Accommodation
In issue (1), complainant alleges that the reasonable accommodation the
agency provided has not been effective because of the agency's failure to
take action to fix the computer's malfunctions. 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. The Commission also notes
that an employee must show a nexus between the disabling condition and the
requested accommodation. See Wiggins v. United States Postal Service,
EEOC Appeal No. 01953715 (April 22,1997). As a threshold matter in a
case of disability discrimination under a failure to accommodate theory,
the complainant must demonstrate that she is a �qualified individual with
a disability." Since the agency conceded in its FAD that complainant
established that she is a qualified individual with a disability, we do
not need to address this issue. Therefore, we shall focus on whether
the agency provided complainant with a reasonable accommodation.
The record indicates that complainant's carpal tunnel affects her
ability to type. When she did type, her hand would go numb and she could
not move it. Report of Investigation (ROI), complainant's affidavit.
The agency purchased a Dragon Dictate Program for her computer which
allows her to speak into the computer so that she does not have to type.
Complainant began having problems with the computer which she reported
to her supervisors. She contends that the agency failed to take action
to fix her computer problems.
Upon review of the record, we find that complainant failed to show that
the agency took no action. Complainant admitted in her affidavit that
the agency did look into the matter but that the problems continued. The
First-Line Supervisor averred that each time complainant informed him of
a computer problem, he contacted the MIS Department which is responsible
for helping them with the computers. E-mail records also support the
agency assertion that it made efforts to correct complainant's computer.
The agency also contacted a contractor outside of its facility to conduct
a diagnostic analysis of complainant's computer. The record indicates
that the voice recognition software in complainant's computer, designed
for word processing, was not functioning well when she was working in the
agency's computer network environment. Furthermore, the record clearly
shows that the agency made great efforts to try to fix the problems and
even looked into purchasing a new computer system for complainant or
a different voice recognition system for complainant if a solution was
not found for her current computer system. We note that complainant did
not request an alternative to the Dragon Dictate Program. Therefore,
based upon our review of the record, we find that complainant failed to
show that the agency took no action to correct her computer problems.
Disparate Treatment
In claims (2) through (4), complainant also alleged a claim of
disparate treatment based on disability and reprisal. A claim of
disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions. As to claim (2),
the First-Line Supervisor indicated that he spoke to the MIS employee
about the incident and learned that the employee was leaving the agency.
ROI, First-Line Supervisor's affidavit. Therefore, he determined that
the employee would have no further interactions with complainant.
The Second-Line Supervisor, in response to claim (3), denied ever
shaking his finger at her and, if he had shaken his finger, it may have
been pointed at complainant's computer and not her. Finally, as to
claim (4), the First-Line Supervisor indicated that, when complainant
was having computer problems, he told her to do things as she had in
the past. He averred that there was work complainant could process up
to a certain point. When the problem was corrected, complainant could
then go back and complete the assignments.
We find that the agency has articulated legitimate, nondiscriminatory
reasons for its actions, the burden now shifts back to complainant to
demonstrate that the agency's reasons were pretext to mask unlawful
discrimination. Complainant, on appeal, included a document with the
words �Black List� on the top and bottom, typed in a different font than
the rest of the document. The document appears to be a list of members
of an EEO class complaint. Complainant provides little information
about this document. She indicates that the document comes from the
Office of Human Resources and that she received it several months ago.
However, she fails to provide any information such as how she received it
and from whom in order to authenticate it. We also note that there is no
indication in the record that the agency's actions were based on her prior
EEO activity or the alleged �black list.� Therefore, by itself, we find
that this document is unpersuasive. Accordingly, we find that complainant
has failed to establish that the agency's actions were discriminatory.
Harassment
Complainant also claimed that the claims raised in her complaint
constituted harassment based on her disability and reprisal. It is
well-settled that harassment based on an individual's disability and prior
EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477
U.S. 57 (1986). In order to establish a claim of harassment under those
bases, the complainant must show that: (1) she is a qualified individual
with a disability covered under the Rehabilitation Act and/or engaged
in prior EEO activity; (2) she was subjected to unwelcome conduct;
(3) the harassment complained of was based on her disability and/or
prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability to the employer. See Flowers v. Southern
Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox
v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). 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).
Assuming arguendo that complainant established that she was a qualified
individual with a disability, we find that complainant failed to establish
a claim of harassment. Complainant alleged that: the Supervisors took
no action against an employee within the MIS Department whom she claimed
was rude to her; the Second-Line Supervisor shook her finger at her;
and the First-Line Supervisor gave her orders even when her computer
was not working. Looking at these incidents as a whole, we find that
complainant has not shown that they had the effect of unreasonably
interfering with her work performance and/or created a hostile work
environment. Accordingly, we find that complainant failed to establish
that the agency's actions were harassment.
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 FAD.
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
__03-08-02________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The record indicates that complainant filed a prior EEO complaint on
July 11, 1995, alleging discrimination based on race, sex, disability
and reprisal in violation of Title VII and the Rehabilitation Act.