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