0120092891
01-25-2011
Nathania C. Tuttle, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Nathania C. Tuttle,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120092891
Agency No. ARS200800992
DECISION
On June 15, 2009, Complainant filed an appeal from the Agency's May 13, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 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 Biological Science Technician at the Agency's Commodity Protection and Quality Unit facility in Parlier, California.
On November 13, 2008, Complainant filed a formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the basis of disability (wrist pain) when:
1. On August 5, 2008, Complainant's supervisor (S1) told her that, because of the prescription medication she was taking, she would "end up like the coach at Fresno State University," who got addicted to painkillers and was subsequently fired;
2. On August 5 and 6, 2008, S1 told Complainant she was not able to do her job;
3. On August 6, 2008, S1 told Complainant to go home to Utah and get a job that does not involve the use of her wrists; and
4. On August 10, 2008, S1 advised Complainant, in front of the mediator, that she should get physical therapy on her wrists to escape surgery.
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). There is no evidence in the record that Complainant requested a hearing within the time frame provided in 29 C.F.R. � 1614.108(f). Accordingly, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b), finding no discrimination.
In its final decision, the Agency determined that Complainant did not establish a prima facie case of disability discrimination because she did not show she was a "qualified individual with a disability" within the meaning of the Americans with Disabilities Act. Further, the Agency found the allegations set forth in the formal complaint failed to rise to the level of actionable harassment.
CONTENTIONS ON APPEAL
Complainant contends she is an employee with a disability and provides a doctor's note in support of this assertion. Complainant also argues that the Agency failed to consider all the events articulated in her informal complaint. Specifically, Complainant states, "I intended for my entire informal complaint to be part of the formal complaint and assumed that it was . . . ."
The Agency did not submit arguments in response.
ANALYSIS AND FINDINGS
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, at 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").
In the Agency's letter to Complainant on December 15, 2008, the Agency notified Complainant it accepted the aforementioned issues for investigation. If Complainant felt the Agency improperly framed the issues or omitted issues, the Agency provided Complainant with instructions on how to correct the error. There is no evidence in the record, nor does Complainant demonstrate on appeal, that she sought to do so. Thus, in considering whether the Agency subjected Complainant to discrimination, we focus our analysis on the issues investigated.
The Commission notes that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Svs., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a 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 her 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
For purposes of analysis only, and without so finding, we assume without finding that Complainant is a qualified individual with a disability. Based on the facts discerned from the record, we find Complainant nevertheless fails to establish a prima facie claim of harassment. The alleged discriminatory actions occurred over the span of two days and during an attempt at mediation. S1 denies Complainant's recollection of the events, and there is no evidence the allegedly discriminatory events were severe or pervasive enough to create a hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision.
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 25, 2011
__________________
Date
2
0120092891
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092891