0120071535
05-15-2009
Pamela D. Rios, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Pamela D. Rios,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal Nos. 0120071535, 01200900801
Agency Nos. HS-06-0043, CIS-06-005
DECISION
On January 30, 2007, complainant filed an appeal of the agency's December
23, 2006 decision, and on October 3, 2008 complainant filed an appeal of
the agency's August 19, 2008 decision concerning her equal employment
opportunity (EEO) complaints 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeals are accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final decisions.
BACKGROUND
At the time of her complaints, complainant was employed as a District
Adjudications Officer (DAO), GS-1801-12, with the U.S. Citizenship and
Immigration Services (CIS), Washington District, Norfolk Sub-Office,
Norfolk, Virginia. The Supervisory DAO, GS-1801-13, was Complainant's
first-line supervisor (S1), and the Officer in Charge, GS-1801-14,
was Complainant's second-line supervisor (S2).
On April 14, 2005, complainant filed an EEO complaint (Complaint A)
alleging that she was discriminated against on the bases of race
(Black), color (dark), mental and physical disabilities (hypertension,
heart disease, migraines, back pain, stress, anxiety, knee injury
and depression), and in reprisal for prior EEO activity when: (A1)
during August and September 2004, she was not offered the opportunity
to work overtime; (A2) since April 2004, she has been harassed by S2
when employees were directed not to park in the lot behind the worksite
despite complainant's need to do so as a result of medical restrictions,
assigned her to work in a waiting room that had been temporarily converted
into an office, and closely monitored her work activities and attendance;
(A3) on November 23, 2004, her supervisor removed her collateral duty
of re-verification, which entailed reviewing the details of coworkers'
security checks and quality annotations; (A4) her request for 74 hours
of advanced sick leave, which she submitted to S1 on December 9, 2004,
was denied as a result of inaction by management; (A5) since December
2004, her supervisors have more closely scrutinized and rigorously
reviewed her work, as compared to her coworkers, ignored her medical
restrictions, and repeatedly provided her with verbal and written
admonishments regarding her performance; (A6) since January 2005, her
supervisors have subjected her to harassing conduct by communicating with
her in a demeaning manner, questioning her attitude, interrogating her
about her leave usage and the sufficiency of her medical documentation,
and engaging in intimidating behavior by meeting with her behind closed
doors and standing outside her office door; (A7) effective March 9, 2005,
as a purported accommodation to her physical needs, she was forced to
move from her office and was placed in a small, windowless room that had
formerly been a waiting room, even though this action did not result in
the intended decrease in the amount of walking she had to do and only
acted to segregate her from her colleagues; (A8) on April 29, 2005,
she became aware that another employee had been offered overtime work,
but she had been excluded from receiving similar work.
On June 21, 2006, complainant filed an EEO complaint (Complaint B)
alleging that she was discriminated against on the bases of race (Black),
color (dark), mental and physical disabilities (osteoarthritis, anxiety,
and depression), and in reprisal for prior EEO activity when: (B1) between
June and September 2005 her supervisors gave her excessive amounts of
work, scrutinized her files, stringently monitored her whereabouts,
and treated her in a demeaning manner; (B2) on May 20, 2005, management
designated a less-senior employee in charge of the office when all other
District Adjudication Officers (DAOs) and supervisors were out of the
building; (B3) effective September 1, 2005, an employee was promoted
to Temporary Supervisory District Adjudications Officer (TSDAO), while
she was not considered for the position; (B4) on January 12, 2004, she
received a letter that seemed to contradict a March 2003 conversation
during which she was told that she was not eligible to participate in the
Adjudications Promotional Assessment Process (APAP), which she believed
denied her promotional opportunities between March 2003 and January 2004;
(B5) on March 22, 2004, her supervisor verbally reprimanded her because
she had not turned around all other cases within six months, which was a
standard that her supervisor had not communicated to her; (B6) on March
25, 2004, she overheard her supervisor state on the telephone that she
wanted to re-open an application that complainant had adjudicated on
the grounds that complainant supposedly approved a false claim; (B7)
on March 25, 2004, a supervisor asked her what her collateral duties
were so that she might reassign those duties to other officers, which
would justify a lower rating on complainant's performance appraisal and
cause an adverse impact on her pay; (B8) on March 29, 2004, a supervisor
conducted an interview in the office next to her; (B9) on unspecified
dates, a supervisor talked about her with co-workers, traveled down the
hall stating that she would "be gone at the end of the month," referred
to her as "a bitch," stated that she "knew how to get her," assigned her
additional work in an arbitrary manner, stated that she would "fix" her
by giving her "every walk-in that came in," and attempted to illustrate
that she was not performing her job to the best of her ability.
The record establishes that in October 2003, complainant was diagnosed
with disarrangement of the knee. On February 4, 2004, complainant
underwent surgery on her right knee and remained on leave until March
22, 2004. The record supports the finding that upon complainant's return
to the office, S1 and S2 discovered some performance issues and attempted
to address them with complainant. The record indicates that complainant
felt harassed by S1 and S2 upon her return to the office.2
For example, complainant alleged that on March 25, 2004, S2 walked through
the office while loudly stating on the telephone that she needed to
re-open an application that complainant adjudicated because complainant
had approved a false claim. Also on March 25, 2004, an e-mail exchange
occurred among complainant, S2, and the District Director (S3) regarding
the backlog in complainant's cases and her collateral duties. As a
result, complainant's collateral duties were reassigned to other officers.
On March 29, 2004, S2 allegedly conducted an interview in the office next
door to complainant's office in order to keep an eye on complainant and
to ensure that none of her co-workers provided her with assistance.
On April 7, 2004, S2 sent an e-mail to all employees stating that only
government-owned vehicles were permitted to be parked in the caged
lot at the rear of the building, unless an employee was working nights
or weekends. On April 2, 2004, after receiving physical restrictions
from complainant's orthopedist (P1), S2 provided complainant the use of
a converted office space (converted office) near the waiting room as
an office to conduct interviews. This office was located in the main
hallway and was approximately 25 feet from the room where applicants
waited to be called for interviews, which was one of complainant's duties.
The converted office was also closer to the ladies room, break room, and
building exit. Complainant's regular office was approximately 200 feet
from the waiting room. Some time in March 2005, management permanently
reassigned complainant to this converted office.
On May 16, 2004, S2 sent an e-mail to all employees explaining that there
would be no overtime until further notice because of budget constraints.
On August 6, 2004, a coworker (CW1) (White, no disability, prior EEO
activity) received an e-mail from S2 offering him overtime.
On September 23, 2004, complainant submitted a doctor's note from her
doctor (P1) indicating that her orthopedist restricted her to "limited
walking." On that date, complainant used the converted office to conduct
her interviews.
On October 6, 2004, complainant was placed on Leave without Pay (LWOP)
when she took time off for which she erroneously believed S2 had signed
her leave request. On October 5, 2004, complainant placed a note from her
psychologist (P2) under S2's door. The note indicated that complainant
received treatment for stress, tension, anxiety, and depression. The
following day, S2 asked complainant what accommodations she required,
but complainant never replied. On or about November 11, 2004, complainant
submitted a note from P1 restricting her to "light duty." On November 12,
2004, S1 asked complainant what management could do to accommodate her.
Complainant responded in the negative.
On November 15, 2004, S1 returned a case to complainant where the
applicant had not been cleared on the necessary security checks.
On November 23, 2004, S1 removed complainant's collateral duty of
re-verifications after returning two cases with expired security checks
and one case lacking required documentation of an arrest. Complainant
later visited the emergency room, apparently related to feeling harassed.
On December 8, 2004, complainant received her Performance Work Plan (PWP),
which had been placed on her desk with a note. Complainant submitted
a note from P1 indicating that she needed to be off work until December
22, 2004. On December 9, 2004, complainant submitted a request for 74
hours of advanced sick leave and a request for LWOP in the alternative.
S2 approved the request for LWOP.
On December 29, 2004, complainant submitted a note from P1 stating that
complainant was restricted to "limited walking." On January 5, 2005,
S1 informed complainant that all military cases should be brought to
S1 for re-verification rather than to the clerk, as complainant had
previously done. Complainant then complained of heart palpitations and
requested leave. S1 instructed complainant to wait in S1's office while
she retrieved S2. Complainant refused S1's offer to call an ambulance
and went to the hospital with an agency employee. Complainant's leave
was approved on the same day. Complainant later characterized S1's
actions as a verbal assault and an attempt to kill her by keeping her
in S1's office.
In January 2005, S1 stopped by complainant's desk and told her that
she was sending complainant an e-mail. When complainant failed to
acknowledge S1, S1 asked, "Do you hear me?" Complainant then e-mailed
S2 to request leave, indicating that S1 spoke to her "like a child."
In an e-mail dated January 31, 2005, after receiving a doctor's note,
S1 again asked complainant what accommodations management could provide
for her and whether complainant wished to use the converted office by
the waiting room. Complainant read S1's e-mail on January 31, 2005, but
did not respond. Also on January 31, 2005, complainant complained to S2
that S1 made patronizing comments to her. Complainant became upset and
left work early. S1 and S2 counseled complainant on or about February
3, 2005. Complainant said that nothing could change her perception that
S1 was trying to kill her. Complainant became upset at the meeting with
S1 and S2 and left work early.
Between February 2005 and July 2005, three of complainant's coworkers,
CW2 (White, no known disability, no prior EEO activity), CW3 (Black,
no known disability, no prior EEO activity), and CW4 (White, no known
disability, no prior EEO activity), received overtime assignments while
complainant did not.
In an e-mail dated March 2, 2005, S2 informed complainant that she was
being permanently moved to the converted office space by the waiting room
to satisfy complainant's "limited walking" restrictions. On March 3,
2005, complainant indicated that she would move, but asked for permission
to wait until Monday when she would get some help. On the same day,
complainant became upset following a discussion with management and
requested leave. Management approved complainant's leave and while
complainant was exiting the building she heard S1 say "This is a crock
of shit." On March 9, 2005, S1, S2, and two male coworkers helped
complainant move her filing cabinets, personal refrigerator, files,
and other office materials to the converted office space.
On April 19, 2005, complainant received a performance review with
an overall rating of "Excellent." S1 noted on the evaluation that
complainant "had been unable to accept professional criticism from either
her first or second-line supervisor." She also noted that complainant
had "abruptly left the office, leaving cases for other officer[s]
to complete." On September 2, 2005, complainant retired from CIS.
Complainant was provided with a copy of each completed report of
investigation and notices of her right to request a hearing before an EEOC
Administrative Judge (AJ). In accordance with complainant's request,
the agency issued final decisions pursuant to 29 C.F.R. � 1614.110(b).
In each decision the agency concluded that complainant failed to prove
that she was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
As both appeals herein are from decisions issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decisions are
subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
See EEOC Management Directive 110, 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").
Disability Claim
As an initial matter, in order to prove a violation of the Rehabilitation
Act, complainant must establish that she is a "qualified individual
with a disability" within the meaning of the Rehabilitation Act.
An "individual with a disability" is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such impairment; or (3) is regarded as having such
impairment. 29 C.F.R. � 1630.2(g). Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. 29
C.F.R. � 1630.2(i). A "qualified" individual with a disability is one
who satisfies the requirements for the employment position she holds or
desires and can perform the essential functions of that position with
or without reasonable accommodation. 29 C.F.R. � 1630.2(m).
A Federal agency must "make reasonable accommodation for the known
physical or mental limitations" of a qualified employee unless the agency
can demonstrate that the accommodation would impose an undue hardship
on the operation of its program. 29 C.F.R. � 1630.9(a). Reasonable
accommodation includes, inter alia "acquisition or modification of
equipment." 29 C.F.R. � 1613.704(b); See also, Lowery v. United States
Postal Service, EEOC Appeal No. 01961852 (October 31, 1997).
We find that complainant has failed to present sufficient evidence in
support of a reasonable accommodation claim. Assuming for purposes
of this decision that complainant is an individual with a disability
within the meaning of the Rehabilitation Act, the record nevertheless
shows that complainant did not request a reasonable accommodation.
In addition, to the extent that complainant may be construed to have
requested an accommodation, she failed to provide the agency with
sufficient medical documentation in response to S1 and S2's requests
for additional information. Moreover, the record shows that management
offered complainant an office that reduced the amount of walking that
complainant was required to perform each day. The evidence supports the
finding that the converted office was closer to the waiting room, women's
restroom, mailroom, and the exit, so as to comply with her physician's
"limited walking" restriction. The preponderance of the record does not
support complainant's assertion that use of the converted office made
walking more difficult or otherwise caused a greater physical burden on
complainant.
Disparate Treatment and Harassment Claims
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII or
Rehabilitation case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see
Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). 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. McDonnell Douglas, 411 U.S. at 802. Next,
the agency must articulate a legitimate, nondiscriminatory reason(s)
for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). If the agency is successful, then the complainant
must prove, by a preponderance of the evidence, that the legitimate
reason(s) proffered by the agency was a pretext for discrimination.
Id. at 256.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
To establish a claim of harassment based on race, color, disability,
or reprisal, complainant must show that: (1) she is a member of the
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 the statutorily
protected class; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. 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).
Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Harassment Claim
The record shows that complainant felt harassed by S1 and S2 following
her return to the office from extended leave in March 2004. However,
the record fails to support the majority of complainant's assertions.
The preponderance of the evidence does not establish a sufficiently severe
and pervasive hostile work environment so as to alter the conditions of
complainant's employment and create an abusive working environment.
Moreover, the evidence in the record does not support a finding that any
hostile activity was motivated by discriminatory or retaliatory animus.
Specifically, the record shows that complainant and S2 had prior disputes
or personality conflicts stemming from the fact that S2 was chosen over
complainant for the position of Officer in Charge, GS-1801-14. Moreover,
the record is devoid of evidence in support of a finding that management
was motivated by discriminatory or retaliatory motives.
With respect to complainant's claims of discrimination on the bases of her
race and color, the record shows that various agency employees provided
statements indicating that they hold the opinion that S2 treated Black
employees differently from White employees. However, the opinions held
by various witnesses are not supported by documentary or other reliable
evidence, such as first-hand knowledge. Moreover, the record indicates
that eight out of sixteen employees were Black, yet complainant argues,
for the most part, that she was singled out by her supervisors rather
than arguing that she and others in her race group were treated in a
similar fashion. Moreover, the record is devoid of documentary evidence
in support of any hostile treatment toward one group of employees on
the basis of race or color. Upon review of the record, we find that the
preponderance of the evidence does not support the conclusion that any
responsible management official acted on the basis of race or color of
any employee. Accordingly, we find that complainant failed to establish
the existence of a hostile work environment on any prohibited basis.
Disparate Treatment Claims
With respect to the claims related to overtime, S2 explained that before
the end of Fiscal Year 2004, the agency allotted overtime monies for
backlog reduction. S2 stated that the overtime was needed to process
denials of citizenship status adjustment applications. S2 explained
that she chose two employees (CW1) (White, prior EEO activity) and
(CW3) (Black, no prior EEO activity) for this overtime assignment
because they were up-to-date with their caseloads and had consistently
submitted denials for adjudication cases on time. S2 stated that in
a majority of the cases, complainant was not current on her work, as
evidenced by a denial she failed to issue after 120 days had elapsed.
S2 further explained that she discovered cases that were several years
old in complainant's office.
With respect to Fiscal Year 2005 overtime allotments, S2 noted that
when overtime was available at the beginning of the 2005 fiscal year,
complainant did not volunteer, and when S2 brought up the subject of
overtime monies in September 2004, complainant exhibited no interest.
S2 also stated that in April 2005, headquarters issued a mandate to
resolve a mismatch report, and she offered that overtime assignment
to three Black employees, two of whom declined the assignment. S2 also
explained that overtime was also offered to CW1 and another employee (CW4)
(White, no prior EEO activity) to resolve a backlog of adoption cases.
S2 added that complainant was not offered either of these assignments
because she did not have the necessary access to resolve the mismatch
issues nor did she normally adjudicate orphan petitions.
In rebuttal, complainant contended that the backlogged files in her
office were not her responsibility, but were left there as a result of
other employees' reassignments. However, the testimony of complainant's
co-workers and former supervisors did not corroborate her statement.
Complainant further alleged that S2 assigned her some backlog cases left
by a retired DAO, but when she advised S2 that it would require her to
work overtime, S2 immediately took the files back and told her she could
not work overtime. In a later statement, complainant confirmed that
she had a backlog of cases, but alleged that the backlog was the result
of S2's having assigned other DAOs' work to her while she was on leave,
in an attempt to "set her up" in March 2004.
We agree with the agency in concluding that complainant's explanation
for the backlog appears inconsistent and does not overcome management's
explanation that the backlog was one of the reasons why complainant was
not offered overtime. In addition, the record shows that complainant
had been on extensive Leave without Pay, which also precluded entitlement
to overtime.
Furthermore, the record shows that both Black and White employees
were provided with overtime opportunities. Additionally, a White
former coworker testified that management failed to provide her with
any information regarding overtime assignments. Although complainant
claimed that she was assigned all types of cases, a review of the record
confirms management's statements that complainant did not perform the
type of work that was assigned during the overtime sessions. Moreover,
the record is devoid of discriminatory or retaliatory animus on the part
of any responsible official. Accordingly, we find insufficient evidence
in the record to support a finding of discrimination or retaliation in
the denial of overtime.
Regarding the parking claim, S2 affirmed that the parking lot at the rear
of the building was shared by three Department of Homeland Security (DHS)
components and that effective April 7, 2004, private vehicle parking in
this area was strictly limited to evenings and weekends. According to
S2, the parking restriction was enforced after a U.S. Immigration and
Customs Enforcement (ICE) supervisor advised her that his agents were
unable to park their government vehicles in the lot because of the
privately-owned vehicles parked there. In addition, S2 stated that
she was not aware of any instance when complainant had driven to work.
Moreover, S2 noted that when she spoke to complainant about the parking
issue complainant advised her that she did not own a car. S2 affirmed
that she saw complainant get dropped off every day at the back door.
S2 also pointed out that three "handicap" parking spaces in front of
the building were available to CIS employees, including complainant.
Complainant asserts that S2 enforced the parking restriction only after
she realized that complainant was using it. A retired former coworker
(RW) testified that there was a long-standing policy against personal
vehicles parking in the lot without special permission from management.
RW also testified that an employee without disabilities had parked
a personal vehicle in the lot for several weeks. However, RW did
not indicate the time-frame when this occurred. Moreover, the record
indicates that it occurred some time in 2003. In addition, an Information
Technology Systems Administrator (TA) for CIS testified that the parking
lot was for government vehicles and special authorized cars only. TA also
acknowledged that he saw some employees park privately-owned vehicles
in the lot, but did not know if they had permission to park there.
We agree with the agency's conclusion that complainant failed to present
sufficient testimony or evidence that sufficiently rebuts S2's explanation
for the timing and reason for the enforcement of the parking restriction.
Accordingly, we conclude that complainant failed to establish that
S2's explanation for enforcing the parking restriction was pretext for
discrimination or reprisal.
Regarding the office move, S2 explained that complainant's original office
was down a separate corridor, requiring applicants to be escorted to and
from the waiting area, approximately 200 feet away. According to S2,
the converted office was much closer to the waiting area and eliminated
the need for complainant to escort applicants back to the waiting area
after interviews because it was near the exit door, reducing the walking
distance and the number of times complainant was required to get up
from her desk. S2 felt that this complied with complainant's medical
restriction of "limited walking. S2 also states that in March 2005,
she decided to move complainant to the converted office permanently,
after complainant presented a medical note dated February 23, 2005,
that suggested an increase in physical restrictions.3 S2 states that
she based her decision on the central location of the office, and the
office's proximity to the restrooms, applicants, and the break room.
In rebuttal, complainant asserts that the office space was substandard
and that being reassigned to the converted office was an attempt by S2
to isolate, intimidate, and spy on complainant. Despite complainant's
contention that she was isolated in her new office and that her coworkers
could no longer help her, S2 explained that the other DAOs could still
assist complainant in retrieving applicants because they had to walk past
the converted office when retrieving their own interviewees or going to
the restroom. S2 also testified that she observed employees stopping
to talk to complainant in the converted office every day. S2 added
that the converted office was the only DAO office with a telephone,
which complainant could use to call a supervisor for assistance.
Although complainant provided several statements about the converted
office, she did not dispute management's explanation that the room
eliminated her need to escort applicants back to the waiting room after
each interview. Complainant also did not dispute management's contention
that she continued to use her regular office until the move became
permanent in 2005. The record also revealed that S3 agreed to return
complainant to her original office if she presented medical documentation
to support that decision. However, complainant never provided the
agency with medical documentation to clarify her "limited" or "minimal"
walking restriction. Moreover, the preponderance of the evidence shows
that management's decision to reassign complainant to the converted office
was reasonably likely to reduce the amount of walking that complainant
engaged in each day. Upon review of the record, even assuming that the
reassignment to the converted office was an adverse employment action,
we do not find that complainant met her burden of establishing that the
reassignment was based upon discriminatory or retaliatory motives.
Regarding promotion opportunities, complainant states that, on July 19,
2005, a Supervisory Information Officer, GS-10, (CW5) (Black, fair skin,
no disability or prior EEO activity) was told that she would be in charge
of the office on July 20, 2005. Complainant further states that CW5
did not come into work on time on July 20, 2005, and there were problems
with missing files. Complainant states that she should have been placed
in charge of the office on July 20, 2005, as evidenced by the fact that
employees came to her with questions on that day and she was the person
who had to solve all the issues on that morning.
S2 states that she does not recall the July 20, 2005 incident described
by complainant. However, S2 states that she does not believe there was an
occasion when all supervisors and all other DAOs were not in the building.
S2 notes that there were three supervisors in the Norfolk Sub-Office,
which included herself, S1 and CW5. S2 states that if a supervisor
is on leave she is asked to select someone from her own unit to act as
supervisor. She adds that, if needed, when a supervisor is out of the
building, another supervisor will "pick up" her duties. S1 also did not
have any specific recollection of the incident described by complainant.
One of complainant's co-workers stated that he believes complainant was
not placed in charge on that particular day because S2 "did not like
[complainant]."
Complainant also notes that on September 1, 2005, CW3 was appointed
to the temporary (90-day) position of TSDAO. Complainant states that
she should have been appointed to the position instead of CW3 who is a
"favorite" of S3. Complainant notes that she has been a DAO for over
twelve years, while CW3 has held the DAO position since January 2003.
Complainant further states that she has trained all of the employees in
the Norfolk Sub-Office. In addition, complainant asserts that S2 told
her that she was tired of complainant and would do anything to help get
her disability retirement.
S3 stated that complainant was not selected for the position of TSDAO
because she was not reliable. S2 states that due to her own departure
from the Norfolk Sub-Office, CW3 was temporarily promoted into the
position of TSDAO for a period of 90 days. According to S2, CW3 was
selected because she had many years of previous supervisory experience
over two departments. S2 states that she did not select complainant
because complainant had only two years experience as a full-time
employee and no previous experience as a supervisor. S2 also noted that
complainant refused to speak to management and had requested that S1
and S2 never speak to her as well. Lastly, S2 noted that complainant's
disability retirement had been approved at the time.
S1 states that she selected CW3 because she was a level GS-12 employee who
was consistent in her work and reliable in her attendance. S1 noted that
CW3 was a seasoned officer, even though she had not been a level GS-12
employee as long as complainant. S1 also stated that she considered
complainant for the position, but did not select her because complainant's
disability retirement paperwork was approved on September 2, 2005.
S1 also noted that complainant told management that she could not work
with S1.
Complainant also asserts that on or about February 21, 2003, she received
an e-mail from an Immigration and Nationalization Service Headquarters
employee informing her that, because she was a term employee, she
was excluded from promotional testing. Complainant further asserts
that, during this period, she was "fired and then rehired in a demoted
position, which hindered any opportunity." Complainant believes that
the denial of promotional opportunities was "orchestrated in the Region
and Headquarters" because she had criticized the manner in which her
supervisors treated her.
S2 states that she had no involvement in denying promotional opportunities
to complainant. She states that the agency created a position especially
for complainant, who was a term employee at that time, so that she would
not lose her job with the Federal government. S2 explains that S3 had
a position transferred to the Norfolk Sub-Office; the position was only
posted for one week; and S3 personally gave the notice to complainant
before it was posted. S3 also assets that complainant had to drop back
a pay-grade, but the drop was only for one pay-period.
Upon review of the record, we find insufficient evidence to conclude that
management attempted to deny complainant any promotional opportunities.
While complainant makes numerous assertions regarding the behavior and
motives of management officials, the preponderance of the record does
not support her claims. Moreover, there is insufficient evidence in the
record to support the finding that any management official was motivated
by discriminatory or retaliatory animus toward complainant.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that
complainant has not met her burden of establishing discrimination or
retaliation on any basis alleged. Accordingly, we AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 15, 2009
Date
1 Because of their common factual background and in the interest of
judicial economy, complainant's two appeals have been consolidated for
adjudication.
2 See complainant's allegations set forth above for details of harassment
claims.
3 The February 23, 2005 medical note restricts complainant to "minimal"
standing, "minimal" walking, no climbing, squatting, or kneeling and
no lifting more than five pounds. The undisputed record shows that
complainant's job does not require any climbing, squatting, kneeling,
or lifting.
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0120071535
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
14
0120071535 & 0120090080
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0120071535 & 0120090080