0120113636
01-31-2013
Patsy G. Hartley, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.
Patsy G. Hartley,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.
Appeal No. 0120113636
Hearing No. 540-2011-00053X
Agency No. APHIS-2010-00219
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 21, 2011 final order 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Management Assistant, GS-343-12, for the Agency's Plant Protection & Quarantine (PPQ), Western Region out of her home in Vail, Arizona.
On February 26, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of disability (diabetes, trivial heart valve leakage, hernia and compressed discs, nerve damage, and PTSD) and in reprisal for prior EEO activity when:
1. her supervisor routinely requires that she find her own work by soliciting coworkers for projects and then threatening (date unspecified) that if unable to find work, she will be sent to Fort Collins, Colorado, a distant work site, to perform assignments there;
2. on November 16, 2009, her supervisor issued her a written reprimand for failing to provide appropriate notice for leave taken on November 10, 2009, even though she had already e-mailed and received approval from her supervisor for taking the leave;
3. on December 22, 2009, her supervisor informed her that future sick leave requests would need to be accompanied by a detailed physician's note; and
4. on January 25, 2010, her supervisor required her to use her personally owned vehicle, accrued leave time, and financial resources (subject to Agency reimbursement) to procure supplies, including photocopies and a telephone headset, for work-related purposes.
In 2008, Complainant was reassigned to the Agency's Plant Protection and Quarantine, Western Region. As a result of the reassignment, the Assistant Regional Director for the PPQ Western Region became Complainant's supervisor. The duty station of Complainant's supervisor was based in Fort Collins, Colorado. Complainant initially requested an assigned duty station in Tucson, Arizona area. However, due to limited office space, Complainant works from her home in Vail, Arizona.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On May 24, 2011, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final order.
In her decision, the AJ found no discrimination. Specifically, the AJ found that Complainant did not establish a prima facie case of disability and reprisal discrimination.1 The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding claim 1, the AJ noted that Complainant's supervisor acknowledged requesting Complainant to seek out other projects by contacting other Western Region personnel. Specifically, the supervisor stated "due to my extensive travel schedule and competing responsibilities I am not able to constantly seek out projects for [Complainant] to work on. As a result, I have asked [Complainant] to assist with seeking out projects that she can work on from her home in Vail, Arizona. I hold weekly conferences calls with [Complainant], when possible, to discuss projects with her and check progress on assignments."
The supervisor stated that she and Complainant "have discussed her workload many times and I have advised [Complainant] that if we cannot find projects that she can perform from her home in Vail, Arizona that she will have to come to the Regional office in order to give her productive work." The supervisor stated that the Agency's Fort Collins, Colorado facility is "the main hub for the twenty-three Western Region states, and is where my office is located. The alternative to have Complainant work in the regional office was not a threat. The regional office has approximately seventy-five personnel reporting to it that perform a variety of work...the alternative to have [Complainant] travel to Fort Collins is so she may meet with program managers and other supervisors in face to face meetings to discuss and develop projects and have access to the regional files."
Moreover, the supervisor stated that she did not discriminate against Complainant based on her disability and prior protected activity "but rather to give her meaningful and productive work. I offered to allow [Complainant] to travel by auto, bus, train, or plane in order to travel to Fort Collins if necessary."
Regarding claim 2, the supervisor stated that on November 16, 2009, she issued Complainant a Letter of Reprimand for failure to provide appropriate notice for leave taken on November 10, 2009. Specifically, the supervisor stated that on November 10, 2009, Complainant sent her an email stating that a box of files had fallen on her foot and that she had called her physician "to see if she needed to go into the doctor's office. She stated that she would let me know the result of the call. I responded that she would need to complete a CA-1 and that I would have the Supervisory Resource Management Specialist, make sure that she had all the correct paperwork to file the OWCP claim." The supervisor stated that she never received a call from Complainant with the status of her foot injury.
Further, the supervisor stated that on November 13, 2009, she received an OPM-71 Request for Leave or Approved Absence from Complainant requesting leave from 1:00 p.m. to 3:00 p.m. for November 10, 2009. The supervisor stated that she consulted with the Employee Relations Specialist and "she agreed that this was a violation of the PPQ Western Region leave policy. [Employee Relations Specialist] assisted me to formulate a letter of reprimand."
The record reflects that in the November 16, 2009 Letter of Reprimand, the supervisor placed Complainant on notice that according to the Western Region Office's Standard Operating Procedure on Attendance and Leave, Section 12 states "(b) every employee must normally obtain advance authorization for any absence from duty. Approval of leave is a discretionary matter reserved to the supervisor. The use of leave is not a right afforded to an employee, but is conditioned on the needs of USDA service. Where absence from duty results from illness or an emergency, an employee is required to notify his or her supervisor or other appropriate person as soon as possible. When an employee fails to properly notify his or her supervisor, the absence may be charged as AWOL."
Furthermore, the supervisor stated that Complainant had been reminded on many occasions that she must speak to a supervisor if requesting an emergency or unplanned absence.
Regarding claim 3, the supervisor denied telling Complainant that future sick leave requests would need to be accompanied by a detailed physician's note. Specifically, the supervisor stated that on December 16, 2009, she was out of the office when Complainant submitted a leave slip requesting eighteen hours of annual leave, with a doctor's note attached. The supervisor stated that she was contacted by the Assistant Regional Director by telephone whether he should approve Complainant's leave and she told him to do so. However, the supervisor stated that upon her return to work, she reviewed Complainant's leave request and associated doctor's note. The supervisor stated that she noted the doctor's note "did not contain enough information to determine why the leave was needed. I contacted [Employee Relations Specialist] and asked what information should be contained in medical documentation for sick leave."
Further, the supervisor stated that during a weekly conference call on December 22, 2009, she provided Complainant guidance "on what information needs to be contained in a note from a doctor if needed for justification for sick leave. I acknowledged that [Complainant] had requested annual leave rather than sick leave and explained that if she needed or asked to supply a doctor's note in the future it would need to contain information pertaining to the nature of the illness or injury involved and a certification from the physician that she was unable to perform her duties."
Regarding claim 4, the supervisor stated that on January 25, 2010, Complainant was required to participate with the Resource Management staff and MRPBS property staff in a property conference that was being held in the Western Region office in Fort Collins. The supervisor stated that she suggested that Complainant "could participate via conference call rather than travel to Fort Collins. I did not know the length of [Complainant's] participation in the conference call and suggested that PPQ purchase a headset for her use so she did not have to hold the phone handset for hours in order to participate. She was asked if her phone would support the use of a headset and she was to investigate this with [Travel Specialist]." The supervisor stated that the Travel Specialist helped to get the information on Complainant's headset and it was later suggested that Complainant look for it at a local office supply store to purchase it and submit a reimbursement form.
The supervisor stated at that time Complainant lived in Vail, Arizona "approximately 30 miles from Tucson. A trip to the office supply store usually requires 11/2 to 2 hours due to traffic and the distance from Tucson. I suggested [Complainant] combine her trips in order to allow efficient use of [Complainant's] time." The supervisor further stated that during the February 2, 2010 conference call, Complainant informed her that she had not purchased a headset for her telephone and "she decided to utilize the speaker phone option on the phone for the call. I cannot recall any conversation with [Complainant] concerning photocopies."
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's disability or prior protected activity.
The Agency's final order implementing the AJ's decision finding no discrimination is AFFIRMED.
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 31, 2013
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
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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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