Queen Allen-Smith, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity CommissionDec 20, 2011
0120103011 (E.E.O.C. Dec. 20, 2011)

0120103011

12-20-2011

Queen Allen-Smith, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.




Queen Allen-Smith,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture

(Rural Development),

Agency.

Appeal No. 0120103011

Agency No. RD-2006-02099

DECISION

On July 15, 2010, Complainant filed an appeal from the Agency’s June 1,

2010, 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 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

At the time of events giving rise to this complaint, Complainant worked

as a Loan Processor at the Agency’s Centralized Servicing Center (CSC)

facility in St. Louis, Missouri.

On August 1, 2006, Complainant filed an EEO complaint alleging that the

Agency discriminated against her on the bases of race (Black), disability

(congestive heart failure, High hypertension, depression, and stress),

and reprisal for prior protected EEO activity when:

1. Complainant was denied a reasonable accommodation, and

2. Complainant was subjected to a hostile work environment when a racial

epithet was used in reference to her.

The complaint was accepted and an investigation conducted. Briefly, the

investigation revealed that starting in 2000, Complainant began having

medical problems. She was detailed to a number of positions between 2001

and 2004 in an effort to find a position with reduced stress to avoid

exacerbating her medical issues. Between 2005 and 2006, Complainant began

formally requesting reasonable accommodation. The medical documentation

provided indicated that Complainant could no longer handle the stress

involved with her Loan Processer position and required a reassignment.

On August 23, 2006, the Agency’s Reasonable Accommodation Review

Committee issued its findings based on Complainant’s request.

It determined that Complainant had requested a reassignment to the

Agency’s Goodfellow facility, but found no vacant funded positions to

which Complainant could be reassigned. It further noted that there were

positions within CSC, however they were positions to which Complainant had

been detailed and which did not work out for Complainant. As such, there

were no positions to which Complainant could be reassigned. Complainant

went out on medical leave in April 2006, and never returned to work.

With regard to her hostile work environment claim, Complainant

alleged that on January 31, 2003, she was told by a Co-Worker (CW)

that during a conversation between CW and the Chief, the Chief used the

term “nigger” in reference to Complainant. Complainant complained

to management at the time and investigation was conducted. The Chief

denied using the term and CW did not confirm that she heard it.

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 (AJ). When

Complainant did not request a hearing within the time frame provided in

29 C.F.R. § 1614.108(f), 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 as alleged.

As to Complainant’s claim of denial of reasonable accommodation,

the Agency found that Complainant was not an individual with a

disability. Even assuming that Complainant established coverage,

the Agency determined that Complainant’s requested accommodation

of reassignment was not available. The Agency held that, despite a

search for one, there were no vacant funded positions at the Agency’s

Goodfellow facility, where Complainant requested the reassignment.

In addition, any positions within the CSC that were vacant were

positions to which Complainant had been detailed, but not performed

successfully. The Agency also noted that it contemplated telework for

Complainant. However, the medical documentation indicated that the work

performed by Complainant was too stressful for her and she could no

longer perform the duties of her Loan Processor position at home or in

the office. As such, the Agency found that Complainant failed to show

that there was an effective accommodation available for her.

As to Complainant’s claim of harassment, the Agency noted that

Complainant’s claim consisted of one alleged event in January 2003,

when she was informed that the Chief allegedly used the term “nigger”

in reference to Complainant. The Agency found that Complainant did not

raise the matter with an EEO Counselor until April 11, 2006, over three

years after the alleged harassing event. As such, the Agency dismissed

the matter pursuant to 29 C.F.R. §1614.107(a)(2) for failure to raise

the matter to the EEO Counselor within 45 days. In addition, the Agency

addressed the merits of Complainant’s claim of harassment and found

that she failed to prove a violation of Title VII had occurred.

Complainant filed the instant appeal. On appeal, Complainant asserted

that she was subjected to unlawful harassment based on the single

event in January 2003. She noted that based on the use of the racial

epithet, she took leave to recover from the stress it created in the

workplace. Complainant also argued that she was denied a reasonable

accommodation. She indicated that she was no longer able to perform

her position. Therefore, Complainant required a reassignment to a

vacant funded position. She argued, contrary to the Agency’s final

decision, that there were vacant funded positions to which she could

have been reassigned. Complainant points to the Agency’s Reasonable

Accommodation Review Committee findings which stated that there were

vacant funded positions at CSC. Therefore, Complainant asserted that

the Agency violated the Rehabilitation Act.

The Agency requested that the Commission affirm its decision finding

no discrimination.

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”).

Dismissal of Harassment Claim

EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in §1614.105, §1614.106 and

§1614.204(c), unless the agency extends the time limits in accordance

with §1614.604(c).

EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or, in the case of

a personnel action, within 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the

Commission to extend the time limit if the complainant can establish that

complainant was not aware of the time limit, that complainant did not

know and reasonably should not have known that the discriminatory matter

or personnel action occurred, that despite due diligence complainant

was prevented by circumstances beyond her control from contacting the

EEO Counselor within the time limit, or for other reasons considered

sufficient by the agency or Commission.

Here, the alleged harassment was based on a single event that occurred in

January 2003. Complainant did not raise the matter with the EEO Counselor

until April 2006, well beyond the 45 day time limit. Complainant has

provided no reason for the delay in raising the matter with the EEO

Counselor. Therefore, we find that the Agency’s dismissal of this

matter was appropriate.

Denial of Reasonable Accommodation

To bring a claim of disability discrimination, Complainant must first

establish that she is disabled within the meaning of the Rehabilitation

Act. For the purposes of analysis, we assume Complainant is an individual

with a disability. 29 C.F.R. § 1630.2(g)(1).

Under the Commission's regulations, an agency is required to make

reasonable accommodation to the known physical and mental limitations

of an otherwise qualified individual with a disability unless the agency

can show that accommodation would cause an undue hardship. 29 C.F.R. §�

�1630.9. In the case at hand, Complainant and the Agency do not contest

that Complainant could no longer perform her position of record as a

Loan Processor. Therefore, the only reasonable accommodation available

was reassignment to another position.

In such reassignment cases, Complainant has an evidentiary burden to

establish that it is more likely than not (preponderance of the evidence)

that there were vacancies during the relevant time period into which

Complainant could have been reassigned. Complainant can establish this

by producing evidence of particular vacancies. However, this is not

the only way of meeting Complainant’s evidentiary burden. In the

alternative, Complainant need only show that: (1) she was qualified to

perform a job or jobs which existed at the agency, and (2) there were

trends or patterns of turnover in the relevant jobs so as to make a

vacancy likely during the time period.

In the case at hand, Complainant has not shown that the Agency incorrectly

concluded that there were no vacant funded positions at the Goodfellow

location. Complainant argued that there were other vacant positions

within other locations in CSC to which she could have been reassigned.

The proof Complainant points to in support of her claim is the Agency’s

Reasonable Accommodation Review Committee findings. However, we note

that the findings also showed that Complainant had been detailed to such

positions and they were found to be unsuccessful for Complainant.

As noted above, Complainant bears the evidentiary burden in cases

involving reassignment. Complainant failed to provide any evidence to

show that what vacancies were present within CSC to which she could have

been reassigned. Further, not only would Complainant have to show that

there were vacant funded positions, but that these were positions for

which she was qualified. We find that Complainant has failed to do so.

Therefore, we conclude that Complainant has not shown that the Agency’s

action constituted a violation of 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 finding no discrimination.

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

December 20, 2011

__________________

Date

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0120103011

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120103011