0120111954
03-01-2013
Millie K. Smith, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Millie K. Smith,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120111954
Hearing No. 570-2010-00006X
Agency No. HS-09-TSA-002852
DECISION
On February 22, 2011, Complainant filed an appeal from the Agency's January 19, 2011 final decision concerning her equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether the Agency addressed Complainant's allegation that she was dissatisfied with the processing of the instant complaint; (2) whether Complainant established that the Agency subjected her to discrimination and hostile work environment harassment on the bases of sex, age, and reprisal for prior protected EEO activity; and (3) whether the Agency subjected Complainant to an improper request for a fitness for duty examination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Specialist, SV-301-H, at the Agency's Office of Inspection, Special Operations Division in Arlington, Virginia. Complainant's First Level Supervisor was the Special Agent in Charge (S1 - male, 56). Complainant's Third Level Supervisor was the Director of Special Operations (S3 - male, 59). A Program Manager (PM - male, 60) was Complainant's Acting Supervisor from December 2008 to January 2009 when S1 and S3 were out of the office.
On December 29, 2008, Complainant contacted an EEO Counselor. On February 25, 2009, Complainant filed an EEO complaint alleging that, since July 2006, the Agency has subjected her to discrimination and ongoing hostile work environment harassment on the bases of sex (female), age (53), and reprisal for prior protected EEO activity (EEO Counselor contact on December 29, 2008). Complainant cited the following incidents in support of her claim:
1. Since July 2006, S1 and S3 have denied her training opportunities;
2. Since July 2006, S1 and S3 have assigned her menial tasks, such as scanning files, that were below her series and grade level;
3. In March 2007 and May 2008, S1 accused her of poor work performance;
4. On unspecified dates since April 2007, management has denied her the opportunity to travel for work-related assignments;
5. On January 6, 2009, PM placed her on administrative leave and required her to submit medical documentation for a fitness for duty examination;1
6. On February 18, 2009, S1 issued her a letter of guidance that placed her on a work plan for fiscal year (FY) 2009.
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. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination and harassment as alleged.
In its final decision, the Agency initially analyzed incidents 1, 2, 5 and 6 under a disparate treatment framework and found that Complainant failed to prove that the legitimate, nondiscriminatory reasons articulated by management were a pretext for sex, age, or reprisal discrimination.
Regarding incident 1, the Agency cited testimony from S1 and S3 that Complainant repeatedly made requests for training that were irrelevant to her series, grade level, and position, or submitted requests after the division had expended its training funds for the year. Although Complainant asserted in her affidavit that other employees received training opportunities that were denied to her, the Agency found that Complainant did not show that those employees, whose positions differed from hers, were similarly situated or had the same training needs as she did. Although Complainant asserted in her affidavit that the atmosphere in the office was one typical of a "boys club" and that management made belittling comments about women, the Agency found that Complainant offered no additional evidence to corroborate her allegations.
Regarding incident 2, the Agency cited testimony from S1 that Complainant, as the only administrative employee in the division, was required to perform whatever clerical and administrative duties the members of the division needed. In addition, the Agency cited testimony from S3 that Complainant was assigned to scan documents to create a back-up off-site record and that the task was not menial. Moreover, the Agency found that Complainant failed to show how the tasks assigned to her were outside of her position description or were irrelevant to her position.
Regarding incident 5, the Agency cited testimony from PM that, when the EEO Office advised him that Complainant had made statements during EEO counseling about being depressed and contemplating suicide, he met with Complainant and other management officials to discuss how to address concerns about her safety. In addition, the Agency cited testimony from the Director of the Employee Relations Programs Division that Complainant was issued a fitness for duty letter to ensure that she was ready and able to be in the workplace without posing a risk to herself or others. Although Complainant asserted in her affidavit that management's discussion with the EEO Counselor (prior to her waiving anonymity) had a chilling effect on her engaging in the EEO process, the Agency found that management's response to the issue of Complainant feeling depressed and possibly suicidal could not be reasonably seen as an action that would discourage her participating in the EEO process.
Regarding incident 6, the Agency cited testimony from S1 that Complainant had received an "unsatisfactory" performance evaluation for FY 2008 and he wanted to provide her with more specifics about what she needed to do to achieve a "successful" rating. In addition, the Agency cited testimony from S3 that management placed Complainant on the work plan to try to improve her performance. Although Complainant asserted in her affidavit that management "falsely and inaccurately" alleged that her work performance was at an unsatisfactory level, the Agency found that she offered no evidence to support her contention that management's assessment of her performance was erroneous or that its decision to place her on a work plan was discriminatory.
The Agency concluded its decision with an analysis of incidents 1-6 under a harassment framework. Specifically, the Agency found that Complainant failed to prove that the conduct was based on her sex, age, or prior EEO activity. Regarding incidents 1, 2, 5, and 6, the Agency referred to its earlier disparate treatment discussion. Regarding incident 3, the Agency cited testimony from S1 that Complainant made mistakes on a weekly basis, such as charging the wrong type of leave to employees' leave balances. Regarding incident 4, the Agency cited testimony from S3 that Complainant was initially given the opportunity to travel for covert testing at airports, but was unable to report accurately on the identity of security screeners who did not pass the covert tests. The Agency found that Complainant did not offer evidence to adequately rebut the explanations given by management for incidents 3 and 4.
CONTENTIONS ON APPEAL
On appeal, Complainant stated that she believed a review of her case will find that the Agency's final decision erred in finding no discrimination. Complainant did not elaborate any further. The Agency did not submit a statement or brief in opposition to Complainant's appeal.
ANALYSIS AND FINDINGS
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.A. (Nov. 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").
Dissatisfaction with the Processing of an EEO Complaint
As an initial matter, we note that Complainant alleged in her affidavit that the EEO Counselor improperly disclosed her identity to management officials when she had not yet waived her anonymity. We find that Complainant has alleged dissatisfaction with the processing of the instant complaint. We emphasize that the Agency has a duty to address this matter. EEO MD-110, Chapter 5, � IV.D provides, in relevant part, the following: "The agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the agency's reason(s) for not taking any action." We note that the Agency's final decision briefly mentioned Complainant's anonymity concerns as part of its pretext analysis of incident 5. The record, however, does not reflect what, if any, actions the Agency took to address Complainant's concerns. Consequently, to remedy this deficiency, and out of concern for the integrity of the Agency's EEO process, we order the Agency to provide Complainant with a report of any actions it took to resolve her concerns regarding the processing of her complaint, or an explanation of its reasons for not taking action, in accordance with the Order below.
Disparate Treatment - Incidents 1-4, and 6
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Upon review of the record, we find that Complainant has failed to establish discrimination on the bases of sex, age, and reprisal regarding incidents 1-4, and 6. Specifically, we find that management articulated legitimate, nondiscriminatory reasons for its actions, as explained in detail above. Moreover, like the Agency, we find that Complainant has not shown pretext. In so finding, we note that we agree with the Agency's assessment of the pretext arguments Complainant raised in her affidavit, that Complainant declined to submit a rebuttal statement to the EEO Investigator after reviewing management's testimony, and that Complainant did not submit any arguments on appeal.
Harassment - Incidents 1-4, and 6
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (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; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or 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). 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 at 6 (Mar. 8, 1994) (Harris Guidance)
Upon review of the record, we find that Complainant has failed to establish a claim of harassment. Specifically, we find, under the standards set forth in Harris, that Complainant's claim of hostile work environment must fail. See Harris Guidance. A finding of hostile work environment is precluded by our determination that Complainant failed to establish that any of the Agency's actions in incidents 1-4, and 6 were motivated by sex, age, or reprisal. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Disability-Related Inquiries and Medical Examinations - Incident 5
The Agency analyzed incident 5 under a disparate treatment framework and a harassment framework. We find, however, that the issue is more properly framed as whether the Agency subjected Complainant to an improper request for a fitness for duty examination.
The Rehabilitation Act places certain limitations on an employer's ability to make disability-related inquiries or require medical examinations of employees. The inquiry may be made or the examination ordered only if it is job-related and consistent with business necessity.
See 29 C.F.R. �� 1630.13(b), 1630.14(c). Generally, a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, EEOC Notice No. 915.002, Question 5 (July 27, 2000). Objective evidence is reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will impair her ability to perform essential job functions or will pose a direct threat. Id. It is the burden of the employer to show that its disability-related inquiries and requests for medical examination are job-related and consistent with business necessity. Id.
"Direct threat" means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.
29 C.F.R. � 1630.2(r). The determination that an individual poses a "direct threat" shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. Id. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. Id. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Id.
Here, the record reflects that the Agency placed Complainant on administrative leave on January 6, 2009 and required her to submit medical documentation for a fitness for duty examination. Moreover, the record reflects that the Agency did so after receiving written statements from two employees in the EEO Office concerning Complainant's behavior during meetings on December 29 and 30, 2008. In a December 30, 2008 memorandum for the record regarding a meeting with Complainant on December 29, 2008, Complainant's EEO Counselor stated the following: (a) Complainant commented that she "always felt alone with no one to turn to" at work and at home and that her workplace was making her more depressed than she was before; (b) Complainant appeared "frightened, depressed, and despondent" and began crying several times during the meeting; and (c) based on his conversation with Complainant, he recommended that she return on December 30, 2008 to speak with the Manager of the Informal Complaint Division (M1). In a December 30, 2008 memorandum for the record regarding a meeting with Complainant earlier that day, M1 noted that Complainant "stated that she was suicidal this past spring and still has thoughts that it is not worth going on."
Based on the above, we find that the Agency required Complainant to submit medical documentation for a fitness for duty examination because it had a reasonable belief, based on the best available objective evidence, that she would pose a direct threat due to a medical condition. Specifically, we find that the Agency's action on January 6, 2009 was based on reliable information, provided by Complainant's EEO Counselor and M1, that Complainant only a few days earlier had said she was depressed and having suicidal thoughts. Thus, we find that the Agency's request for Complainant to obtain medical documentation was job-related and consistent with business necessity, and did not violate the Rehabilitation Act.
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 decision. The Agency, however, will comply with the Order set forth below.
ORDER
The Agency is ordered to take the following action:
1. Within thirty (30) calendar days of the date this decision becomes final, the Agency official responsible for the quality of complaints processing must add a record of Complainant's concerns, and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. Moreover, the Agency shall provide Complainant with a report of any actions taken by the Agency to resolve the concerns, or an explanation of its reason for not taking action. The Agency shall submit a copy of the report or its explanation to the Compliance Officer referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
__3/1/13________________
Date
1 The record reflects that Complainant submitted medical documentation on January 9, 2009 and returned to work shortly thereafter.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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