0120055577
02-23-2007
Rosemary L. Jimenez, Complainant, v. Linda S. McMahon, Acting Commissioner, Social Security Administration, Agency.
Rosemary L. Jimenez,
Complainant,
v.
Linda S. McMahon,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200555771
Hearing No. 120-2005-00001X
Agency Nos. 03-0367SSA, 04-0023SSA
DECISION
On August 24, 2005, complainant filed an appeal from the agency's 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Budget Analyst at the agency's Office of Budget.2
Complainant filed an EEO complaint (Agency No. 03-0367) dated July
10, 2003, which the agency partially accepted on November 7, 2003.
Thereafter, on April 28, 2004, complainant amended the issues raised in
the complaint. On June 23, 2004, the agency issued an amended acceptance
letter accepting the following claims:
1. Complainant has been subjected to discrimination based on her
color (olive), national origin (Mexican-American), sex (female), race
(Hispanic), religion (Catholic), marital status (single), disability
(Rhino-Allergic Sinusitis, Temporal Mandibular Joint Disorder, Lingual
Nerve Damage, Sciatic Joint Lumbar Instability-lower back/left hip and
Macular Degeneration), parental status (non-parent), age (over 40),
and in reprisal for prior protected activity regarding management's
assignment of duties to her. The following examples are cited:
a. Complainant has been denied tools necessary to complete assignments.
For example, she learned on April 1, 2003, that the GSA Delegation
Staffing assignment (for which she was responsible) was partially
completed without her knowledge or participation. Another example
occurred on August 7, 2003, and it involved the OMB Submission exhibit
(Non-personnel Costs) in which complainant was denied background
information necessary for her full participation in an important August
12 meeting on that topic. Still another example occurred on March 14,
2003, when information relating to the Delegation's program was not
timely provided to complainant.
b. Complainant was given an assignment by her supervisor on March 20,
2003, but only given limited background and insufficient notice to
complete it. Also, on July 14, 2003, complainant was not brought into
the loop regarding discussions involving "RENT Shortfalls," (another area
of her responsibility) when that issue had surfaced as early as July 10,
2003.
c. Complainant's assignment of responsibility for the Rent and Delegation
Budget (a low priority assignment) affords her little access to
information to do her job and few out-of-the-office meetings to attend.
d. Complainant is never assigned as the person-to-contact in the absence
of her team leader; nor is she designated Acting Team Leader.
e. On September 11, 2003, complainant received an assignment from
her Team Leader that involved OMB Rent Exhibit 54. When complainant
received such assignments in years past, management told her to refer
to OMB A-11 for instructions in completing the assignment and management
provided hard copies of background information sent by GSA as an aid in
completing the assignment. For the assignment this year, management did
not initially provide such information. Management's delay has resulted
in complainant having to review, revise, recalculate, and resubmit this
work unnecessarily. In connection with this project, on at least one
occasion (in October 2003), management set deadlines for complainant that
failed to take into account that she was on sick leave or had jury duty.
f. On an assignment involving "Rental Payments for Space & Land" given
to complainant on July 8, 2003, management denied outright or delayed
provision of data necessary for successful completion of the project.
g. On September 15, 2003, complainant was given a memorandum dated
August 12, 2003, regarding "Space Increases" that was addressed from
the Deputy Commissioner for Finance, Assessment and Management (DCFAM).
This memo dealt with issues for which complainant has responsibility,
yet complainant had not had prior opportunity to share in the discussions
giving rise to this memo.
h. On February 25, 2003 (Memorandum of Understanding between GSA and
the agency), March 13, 2003 (House Appropriations Hearing exhibit) and
April 4, 2003 (Delegation's account), complainant's comments, questions
and concerns about various assignments were ignored or disregarded.
2. Complainant claims that based on her color, national origin, sex,
race, religion, marital status, disability, parental status, age, and
in reprisal for prior protected activity, her requests for reasonable
accommodation have been repeatedly denied. Some examples are:
a. Complainant learned on March 31, 2003, her official request for
reasonable accommodation was denied.
b. Complainant's requests for other accommodations regarding her work
environment concerns have been denied with two such denials occurring
on March 3, 2003, and April 10, 2003.
3. Complainant claims based on her color, national origin, sex,
race, religion, marital status, disability, parental status, age,
and in reprisal for prior protected activity she has been subjected to
continuous and ongoing harassment (non-sexual). Complainant cites the
following examples of harassment:
a. Complainant's right to privacy was violated by forwarding her medical
information and environmental concerns to the agency's medical officer
without her consent or knowledge.
b. The Office of Facility Management's (OFM) report of investigation
that complainant received on March 17, 2003, failed to resolve her
environmental concerns relating to strong odors from perfumes and other
substances in or around her work space.
c. On January 16, 2003, a co-worker of complainant hampered her ability
to perform a virus abatement exercise through his discourtesy, rudeness,
and disrespect. Management did nothing to intervene.
d. Management routinely disregards complainant's requests for advance
notice of meetings with managers and team leaders that relate to
performance/ personnel/disciplinary/environmental matters. One such
occasion involving the supervisor took place on December 12, 2002, and
another occurred on January 8, 2003. Complainant contends that advance
notice enables her to obtain union representation.
e. Management routinely fails to intervene when co-workers bring to the
work place substances that aggravate complainant's allergies.
f. Management continuously impedes complainant's use of official time
or denies her requests for official time.
g. On July 16, 2003, in a meeting to discuss the Rent Budget status and
estimates, a manager threw complainant's spreadsheets to the floor and
yelled at complainant.
h. On August 28, 2003, while complainant was in the front office
seeking work supplies, the Associate Commissioner (AC) addressed her in
a derogatory manner by asking her whether she was hanging out or waiting
for someone.
i. When complainant was subjected to harassment by a co-worker on May
23, and June 5, 2003, management failed to intervene or take corrective
action.
j. On September 22, 2003, complainant's computer was upgraded from a
1997 Microsoft version to the 2002 Microsoft version. Management has
routinely provided complainant with inferior or outdated equipment
compared to that provided her peers.
k. On January 8, 2003, as a result of an incident that occurred on
December 12, 2002, complainant's supervisor issued her a Note for the
Record and referred her to the Employee Assistance Program.
4. Complainant claims that based on her color, national origin, sex,
race, religion, marital status, disability, parental status, age, and
in reprisal for prior protected activity she was denied a performance
award for the period of October 2002, to May 2003.
5. Complainant claims that based on her color, national origin, sex,
race, religion, marital status, disability, parental status, age, and in
reprisal for prior protected activity, she has been denied the following
training opportunities:
a. Management has denied or delayed approval of complainant's requests
for training. For example, complainant's Team Leader did not request,
suggest, invite, or recommend that complainant attend a Facilities
Conference in Florida in August 2003. As another example, complainant has
been denied the training opportunities outlined in the Office of Budget
Training Curriculum (OBTC) which was promulgated on October 14, 2003.
b. On August 28, 2003, complainant overheard the AC recommend to
complainant's male co-worker that he take courses such as Budget
Formulation and Budget Execution as background information to see how the
Budget Office works. Since complainant's employ in the Budget Office,
the AC has never conferred with her regarding recommendations on courses
he thought she should take.
c. Management has denied complainant's request for rotational assignments.
Complainant indicated her availability for rotational assignment as
recently as September 29, 2003, yet she was not included among the
rotational assignments announced on October 29, 2003.
d. On March 14, 2003, complainant learned that she had been denied
payroll training.
6. Complainant claims that based on her color, national origin, sex,
race, religion, marital status, disability, parental status, age, and
in reprisal for prior protected activity, management failed to undertake
action necessary to enable her to process a Workers' Compensation claim
expeditiously.
7. Complainant claims that based on her color, national origin, sex,
race, religion, marital status, disability, parental status, age, and in
reprisal, management discriminated against her in the application of rules
regarding time, leave and attendance and cites the following examples:
a. Management imposed a requirement that complainant request prior
approval for overtime and compensatory time. As of September 24, 2003,
complainant is required to notify an appropriate person whenever she is
going to leave the office, while her peers are not similarly restricted.
b. In response to complainant's having signed in for a number of hours
on Sunday, August 10, 2003, management retaliated by issuing to all
employees a notice regarding the completion of the Time and Attendance
Roster and the Serial Overtime or Holiday Work Attendance Roster.
8. Complainant claims that based on her color, national origin, sex,
race, religion, marital status, disability, parental status, age, and
in reprisal for prior protected activity, complainant was denied the
opportunity to participate in the performance awards panel that was
convened on August 12, 2003, although she was a member of the FY 2003
Office of Budget Awards Panel.
9. Complainant claims that based on her color, national origin, sex,
race, religion, marital status, disability, parental status, age, and
in reprisal for prior protected activity, she has not been selected to
participate in an Office of Budget vacancy assessment panel despite the
fact that there have been three such panels convened in 2003, and though
she had volunteered to serve.
10. Complainant claims that based on her color, national origin, sex,
race, religion, marital status, disability, parental status, age, and
in reprisal for prior protected activity, she was not promoted to the
position of Budget Analyst, GS-560-13, which was posted under vacancy
announcement number F-707.
Complainant filed a second EEO complaint (Agency No. 04-0023-SSA) dated
October 29, 2003, with amendments, which the agency partially accepted.
On March 31, 2004, the agency issued an acceptance letter identifying
the following claims:
1. Complainant claims she was discriminated against based on color
(olive), national origin (Mexican-American), sex (female), race
(Hispanic), religion (Catholic), disability (Rhino-Allergic Sinusitis,
Temporal Mandibular Joint Dysfuntion, Lingual Nerve Damage, lower
back/left hip problems, Sacral Lumbar Displacement, Macular Degeneration
and Bursitis), marital status (single), parental status (non-parent),
age (over 40), and in reprisal for prior protected activity, when she
was not promoted to the following positions:
a. Budget Analyst, GS-560-13, under vacancy announcement number (VAN)
V-340; and
b. Program Analyst, GS-343-12, under VAN Q-752.
2. Complainant claims that based on her color, national origin, sex,
race, religion, disability, marital status, parental status, age, and in
reprisal for prior protected activity, she has been denied the following
training opportunities:
a. On April 4, 2003, complainant was denied the opportunity to take a
Fundamentals of Cost Accounting seminar offered by the American Management
Association.
b. On May 16, 2003, complainant learned that she had been denied
the opportunity to take her preference of either the Advanced Budget
Simulation course or the Budget Analysis course.
c. While management did give approval for complainant to attend training
relating to The Legislative Process: Working with Congress, this course
was irrelevant to complainant's currently assigned duties.
3. Complainant claims that based on her color, national origin, sex,
race, religion, disability, marital status, parental status, age, and
in reprisal for prior protected activity she was discriminated against
when on August 28, 2003, complainant discovered that two new employees
(one brought on as a Presidential Management Intern and the other under
the Outstanding Scholar Program) had been added to the Office of Budget
roster. As there had been no posting for these positions, complainant
was denied the opportunity to compete for the positions occupied by the
new employees.
4. Complainant claims that based on her color, national origin, sex,
race, religion, disability, marital status, parental status, age, and
in reprisal for prior protected activity she was discriminated against
when she was continuously denied opportunities for reassignments.
5. Complainant was discriminated against based on her marital status and
parental status and has been subjected to a hostile work environment by
two of her former Team Leaders who have commented to her disparagingly
about her single, non-parental status.
6. Complainant was discriminated against based on her color, national
origin, sex, race, religion, disability, marital status, parental
status, age, and in reprisal for prior protected activity when she was
non-selected for the following positions:
a. VAN D-2475, Management Analyst on July 3, 2001.
b. VAN F-694, Management Analyst on February 10, 2002.
c. VAN F-707, Management Analyst on July 14, 2002.
d. VAN F-720, Management Analyst on November 17, 2002.
e. VAN H-1983, Program Analyst on April 21, 2002.
f. VAN H-2059, Program Analyst on August 11, 2002.
g. VAN H-2099, Management Analyst on December 15, 2002.
h. VAN LDP-2, Leadership Development Program on September 27, 2002.
i. VAN L-1162, Management Analyst on June 2, 2002.
j. VAN Q-440, Budget Analyst on February 28, 1999.
k. VAN U-371, Management & Program Analyst on September 23, 2002.
l. VAN U-384, Social Insurance Specialist on August 25, 2002.
m. VAN V-322, Budget Analyst on December 16, 2001.
n. VAN V-323, Budget Analyst on December 16, 2001.
o. VAN W-1139, Management Analyst on June 16, 2002.
p. VAN V-327, Budget Analyst on February 28, 1999.
q. VAN V-305, Management Analyst on September 22, 2002.
r. VAN V-329, Budget Analyst on February 23, 2003.
The agency accepted issues (1) - (4) for investigation. The agency
dismissed issue (5) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim. The agency dismissed issue (6) pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. The agency noted that
complainant requested EEO counseling on June 30, 2003; however, the most
recent non-selection identified in issue (6) occurred on February 23,
2003, which is beyond the applicable limitations period. The agency
noted that while undergoing counseling for her complaint, complainant
stated that she did not request counseling for the promotions in issue
(6) because the EEO process is tedious and lengthy. The agency also
found that the non-selections constituted discrete acts and thus could
not be analyzed under a continuing violation theory. However, the agency
noted that complainant could submit relevant information related to issues
(5) and (6) that are relevant to the accepted issues.
In a June 23, 2004 letter, the agency consolidated complaints 03-0367
and 04-0023.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. When complainant did not object, the AJ assigned to
the case granted the agency's April 26, 2005 motion for a decision without
a hearing and issued a decision without a hearing on June 7, 2005.
In his decision, the AJ noted that complainant alleged that she was
discriminated against on the bases of her color (olive), national origin
(Mexican-American), sex (female), race (Hispanic), religion (Catholic),
marital status (single), disability (rhino allergic sinusitis, Temporal
Mandibular Disorder (TMJ), lingual nerve damage, sciatic joint lumbar,
instability lower back, left hip, and macular degeneration), parental
status (non parent), age (over 40), and prior EEO activity when:
1. There was a continuous and ongoing manner of
discriminatory harassment regarding management's
assignment of duties to complainant.
2. Complainant's requests for reasonable accommodation were
denied.
3. Complainant was subjected to continuous and ongoing
non-sexual harassment.
4. Complainant was denied a Performance Award for the period of
October 2002, to May 2003.
5. Complainant was denied training opportunities.
6. Management failed to undertake action necessary to enable
her to process a Workers' Compensation
claim expeditiously.
7. Management discriminated against complainant in the
application of rules regarding time,
leave, and attendance.
8. Complainant was denied the opportunity to participate in the
performance awards panel that was convened on August 12, 2003.
9. Complainant was not selected to participate on an Office
of Budget vacancy assessment panel.
10. Complainant was not selected for the GS-560-12 Budget
Analyst position advertised under Vacancy
Announcement V-340.
11. Complainant was not selected for the GS-343-12 Program
Analyst position advertised under Q-752.
The AJ also considered the claim of harassment.
The AJ noted that he was not considering on the merits various
non-selections and other employment actions that were properly dismissed
by the agency. Additionally, the AJ noted the Commission does not have
jurisdiction over complaints involving discrimination based on parental
or marital status.
With regard to issue (1), the AJ noted that it is common practice among
budget analysts to assume assignments and tasks that other employees
have either begun or were finishing.
With regard to issue (2), the AJ noted that complainant has not shown
that she suffered a disability or a combination of impairments that
would lead to a disability. The AJ noted complainant identified she
suffered from numerous impairments; however, she did not show that these
impairments were severely limiting of her major life activities.
With regard to issue (3), the AJ noted complainant belongs to a protected
group based on the various bases she has alleged. However, the AJ found
complainant was not subjected to harassment as a result of her membership
in those protected groups. The AJ also stated that complainant was not
subjected to harassment that affected a term, condition, or privilege of
employment or had the effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile work environment.
The AJ also stated it has not been shown that the agency knew of the
harassment and failed to take prompt and remedial action. In contrast,
the AJ found this is "a case where the Employee has been harassing the
Agency, based upon what [the AJ has] seen in the record." The AJ noted
the level of hostility failed to rise to the point where the actions
complained of were actionable. The AJ did not discern a severe or
pervasive pattern of offensive conduct.
Assuming complainant had established a prima facie case of harassment,
the AJ found there was not enough evidence for the agency to be held
liable. The AJ found the events described were not sufficiently severe
or pervasive to alter the conditions of complainant's employment and
there was no basis for imputing liability to the agency under general
agency principles.
With regard to issue (4), the AJ noted the award complainant challenged
was decided by a panel of both bargaining unit employees and managers.
The AJ noted that S1, complainant's supervisor from November 2000,
through April 2003, said that complainant did not merit the performance
award because she did not consistently produce timely, accurate and
quality work products that would support such an assessment.
With regard to her claim that she was denied training opportunities (issue
(5)), the AJ found that the agency showed that complainant had been
given as much, if not more, training opportunities than some similarly
situated employees.
The AJ noted that the Workers' Compensation claim (issue (6)) does not
state a claim since it is outside the EEOC's jurisdiction. Further, the
AJ noted that there is nothing to show that the agency did not attempt
to process complainant's paperwork in a timely and accurate matter.
Additionally, the AJ found issue (7) without merit. The AJ noted that
the agency's policies regarding time and attendance is not different
from the policies at most agencies in the federal government.
With regard to issues (8) and (9), the AJ noted that participation in
the awards panel and the Office of Budget vacancy assessment panel were
not entitlements.
With regard to issue (10), the AJ noted that VAN-340 was actually
cancelled and no one was selected.
With regard to issue (11), the AJ noted that the selectee had already
performed as a GS-13 in the past. The AJ found that complainant failed
to rebut the legitimate, non-discriminatory reasons for the non-selection
raised by the agency.
The AJ found that complainant did not meet the elements of her prima
facie case for harassment.
When the agency failed to issue a final order within forty days of receipt
of the AJ's decision, the AJ's decision finding that complainant failed
to prove that she was subjected to discrimination as alleged became the
agency's final action pursuant to 29 C.F.R. � 1614.109(i).
On appeal, complainant contends that the AJ did not change the due
date on the memorandum issued by the agency on January 20, 2005,
regarding the Motion for Summary Judgment and/or Dispositive Motion
filing deadline. Additionally, complainant claims the AJ failed to
consider all her information submitted. Complainant claims that there
are genuine material facts in dispute. Complainant does not challenge
the AJ's definition of the complaint.
In response to complainant's appeal, the agency notes that the AJ
did change the dates contained in the January 20, 2005 memorandum.
Specifically, the agency notes that new discovery dates and a new hearing
date were set in the AJ's February 2, 2005 Order. The agency notes
that complainant objected to certain discovery issues in the January
25, 2005 Order and that on February 2, 2005, the AJ issued an Order on
a variety of motions and provided that discovery was extended to April
2005, to accommodate complainant's retention of counsel in December 2004.
The agency noted that a new hearing date was scheduled for May 17, 18, and
20, 2005. The agency noted that under Commission regulations, dispositive
motions are due 15 days prior to a hearing. The agency notes because the
hearing was rescheduled until May 17, 2005, dispositive motions were due
by May 2, 2005. The agency states it filed its Prehearing Statement and
Memorandum in Support of Motion to Dismiss on April 26, 2005. The agency
notes that although complainant had until May 12, 2005, to respond, she
failed to do so. Further, the agency notes that the AJ considered all
the evidence of record and claims there are no material facts in dispute.
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
We first address complainant's claim that the agency's motion for a
decision without a hearing was untimely filed. Despite complainant's
contention, we note the record contains the AJ's February 2, 2005
Order specifying that the discovery deadline in the case was extended
from early January 2005, to early April 2005. Also in this Order,
the AJ noted that the hearing in the case was scheduled for May 17,
18, and 20, 2005. EEOC Regulations provide that a party may file a
statement with the AJ moving for a decision without a hearing at least
fifteen days prior to the date of the hearing. 29 C.F.R. � 1614.109(g).
The agency met the deadline by filing the motion for summary judgment on
April 26, 2005. The regulations provide that the opposing party may file
an opposition to a motion for a decision without a hearing within fifteen
days of receipt of the motion for a decision without a hearing. Id.
Complainant acknowledges she received the agency's motion for a decision
without a hearing and that she failed to respond within fifteen days of
receipt of the motion.
Upon review of the record, we find the AJ properly granted summary
judgment in this case as no genuine dispute of material fact exists.
We find that the AJ's decision properly referenced the appropriate
regulations, policies, and laws. At the outset, we note the AJ properly
noted that the bases of parental status and marital status are outside the
Commission's jurisdiction. Further, we find the AJ properly dismissed the
issue of the agency's interference with her Workers' Compensation claim
for failure to state a claim pursuant to 29 C.F.R. �1614.107(a)(1).
Additionally, we find that on appeal complainant did not show that
the agency's procedural dismissal of any of the issues in her original
complaints was improper.
With regard to her allegations surrounding assignment of duties, we note
the record does not support complainant's contention that she was not
given the necessary tools to complete her assignments as a result of a
protected basis. Specifically, with regard to her claim surrounding
a July 2003 "RENT Shortfalls" assignment, we note the record shows
that on June 4, 2003, complainant received an electronic mail message
from the Office of Facilities Management outlining their analysis of a
rent shortfall. Additionally, the record reveals that on July 3, 2003,
complainant received detailed data from the Office of Financial Policy
and Operations on rent actuals through June 2003. Further, the record
reveals that complainant's team leader wrote to her and gave her the
assignment and necessary information on July 10, 2003. Additionally, with
regard to her claim that she had a low priority assignment which afforded
her little access to information to do her job and few out-of-the-office
meetings, we note the record shows that complainant's assignments involve
SSA Rent and GSA Delegations budgets, which the record reveals make up
a significant portion of the agency's administrative budget and based on
their size of the accounts and relationship to overall agency issues are
considered very important budget accounts. Further, we find complainant
provided no evidence in support of her remaining claims alleging that
based on her protected status that management failed to timely give her
information necessary to complete her assignments or that management
did not consider her input on assignments.
With regard to complainant's claim that the agency denied her a reasonable
accommodation for her disability, we find that even if complainant
were considered a qualified individual with a disability, she has not
shown that the agency failed to provide her a reasonable accommodation.
In her complaint, complainant claims that her requests for reasonable
accommodation have been repeatedly denied. The record reveals that
in November 2002, complainant complained about air fresheners and room
deodorizers present in Room 2117, her workstation, noting that they were
causing her an allergic reaction. In November 2002, complainant was
permitted to relocate to a station near the front office away from the
work location where she observed a cardboard deodorizer which she stated
caused her allergy problems. In a November 29, 2002 electronic mail
message, complainant stated that despite relocating her work station, she
still noticed an increase in her allergy symptoms. Complainant requested
removal of air fresheners and room sprays from the office. In a November
25, 2002 electronic mail message, complainant was offered her choice
of two vacant work stations. In a subsequent electronic mail message
in December 2002, complainant requested that the carpets be cleaned and
the air filters be changed to alleviate her symptoms. In a December 10,
2002 electronic mail message, complainant noted that the changing of the
air filters on the roof and the cleaning of the carpet has not alleviated
the problem. Complainant also noted that going to the computer lab and
the agency's library was not working since she still needed to access
her work station to complete her assignments. Complainant confirmed
that the aromatherapy room spray was removed on December 11, 2002.
Additionally, complainant requested a carbon filtering system be used
and asked for air sampling of Room 2117.
The record contains a December 3, 2002 letter from Doctor 1 who notes
that complainant suffers from rhinoconjunctivitis and allergic headaches
and low grade bronchospasm. Doctor 1 noted that complainant recently
developed a reactive airway with exposure to noxious irritant fumes
relating to air freshening devices and air freshening sprays utilized
in the workplace. Doctor 1 noted that in particular an air freshener
called Ultra Norak and a Spray called Avon Aromatherapy have been
provoking complainant and have resulted in an inflammation of the upper
and lower airway. Doctor 1 recommended all of these devices be removed.
The record also contains a letter from Doctor 2 dated December 18, 2002,
in which he states that complainant can resume duty and should avoid
exposure to allergens. In a December 18, 2002 letter, Doctor 1 notes
that complainant suffers from bronchospasm and rhinosinusitis provoked by
noxious irritant fumes. The doctor recommended that complainant avoid
work areas where she is exposed to strong perfumes, cleaning agents,
and air fresheners.
A December 23, 2002 letter from the Director of the Office of
Environmental Health and Occupational Safety (Health Director),
reveals an air sampling test was conducted in Room 2117 in response to
complainant's concerns. The air sampling report noted a room deodorizer
was detected in Room 2117 and was subsequently removed. According to the
air sampling, no other potential sources for the odor were identified.
The report recommended that all room deodorizers and air fresheners be
removed and confirmed that the room deodorizer was removed on December
4, 2002, and the Avon Aromatherapy Room Spray was removed on December
19, 2002. The report also recommended that the carpet be cleaned which
was conducted on December 6, 2002.
The record reveals that after complainant complained again about odors
in the office, a second air sampling investigation occurred in February
2003. The investigation noted a faint, air-freshener type fragrance
was noticeable upon entering the doorway to Room 2117. However, the
investigation stated no evidence as to the source of the odor could be
identified.
We note that on December 19, 2002, complainant made her formal request
for a reasonable accommodation to be free from exposure to allergens,
noxious fumes, room sprays, and smoke. Complainant also claimed that
the room in the office was not cleaned through the application of an air
cleaning system such as HVAC or HEPA. The record reveals that on March
27, 2003, when complainant's request for a reasonable accommodation
was denied, S1 noted the agency was still interested in resolving
the issue of air quality and urged complainant to share her medical
reports or have her doctor consult with the agency's Medical Officer.
Additionally, the record shows that complainant was sent an April 9,
2003 electronic mail message from the Deputy Commissioner, Office of
Finance, Assessment, and Management in response to complainant's March 17,
2003 request for work accommodations based on environmental concerns.
The Deputy Commissioner informed complainant that he looked into the
situation, but until complainant provided further information that
identified the specific chemicals that might be causing her symptoms,
there was nothing further the agency could do to assist her. Finally,
the record notes that because complainant still complained about the
work environment, S2 offered complainant the opportunity to work from a
new workstation in a different location, which complainant accepted in
July 2003. S2 noted that complainant did not make any further complaints
regarding the work environment.
Upon review, we find that complainant failed to show that the agency
denied her a reasonable accommodation. The record shows that the agency
continually tried to accommodate complainant's purported disability,
which was accomplished, at the latest, by July 2003. To the extent that
complainant claims that she needed any additional accommodations, she
failed to show that any accommodation was necessary for her purported
disability. Complainant failed to provide the medical documentation
necessary to the agency to show what particular fume/odor/fragrance that
still existed in the office actually bothered her medical conditions.
Without such information, the agency could not be expected to provide
any more or different accommodations than what was provided. We do not
address in this decision whether complainant is an individual with a
disability.
With regard to complainant's allegations of harassment, we find the AJ
properly found complainant failed to substantiate her harassment claim.
With regard to her claim that her privacy was violated when her medical
information was forwarded to the agency's medical officer, we note that
complainant's supervisor at the time, S1, stated that since complainant
did not consent to her medical information being shared, he did not
forward her medical history to anyone. Thus, we find that complainant
failed to show that her medical information was shared as complainant
alleged. With regard to her claim that management disregards her requests
for advance notice of meetings, S1 stated that complainant was given
advanced notice and permitted to be accompanied by a union representative
for meetings that could result in disciplinary actions. With regard
to her claim surrounding a January 8, 2003 Note for the Record, we note
the record reveals that as a result of an incident occurring on December
12, 2002, between complainant and a co-worker, complainant was given a
Note for the Record for her disruptive behavior and warned to stay away
from that co-worker. The record also shows that the co-worker involved
in the December 12, 2002 incident was given similar direction by the
co-worker's supervisor. With regard to the claim that complainant was
subjected to harassment by a co-worker on May 23, 2003, and June 5, 2003,
and that management failed to take corrective action, the record reveals
that this claim involved an incident when a co-worker entered a room
in which complainant was present. The record reveals that in a June 5,
2003 electronic mail message complainant informed S2 about the incident
and that S2 spoke with the co-worker's supervisor regarding the incident.
The co-worker's supervisor spoke with the co-worker and witnesses who
confirmed the co-worker was in the same room with complainant but did
not initiate a conversation with her. As a result, complainant was
notified no employee is prohibited from entering any Office of Budget
space, and both complainant and the co-worker were instructed by their
respective supervisors to avoid contact with each other. With regard
to the remaining examples of harassment cited by complainant, we find
complainant failed to show that she was subjected to harassment based
on her membership in any protected group.
With regard to the denial of a performance award for the period of October
2002, to May 2003, the record contains an affidavit from S1 stating that
complainant's work did not merit a performance award for that period.
S1 stated that complainant did not consistently produce timely, accurate,
and quality work products during this time. Complainant presented no
evidence to rebut the agency's legitimate, non-discriminatory reason for
its action or show that the reason provided was a pretext for prohibited
discrimination.
With regard to her claim that she was denied training, we note that
S1 stated that on average complainant had more hours of training per
year than most other employees in the Office of Budget. With regard to
complainant's claim that she was not recommended to attend a Facilities
Conference in Florida in August 2003, we note the record reveals that
the Office of Facilities Management, which organized the conference,
specifically requested the Management Team's team leader attend the
conference and sit on a panel since he was the Office of Budget Lead on
such issues. The record reveals complainant was offered the opportunity
to attend Office of Budget Training Curriculum training. With regard to
her claim that on April 4, 2003, complainant was denied the opportunity to
take a Fundamentals of Cost Accounting seminar, the agency noted that she
was offered to take a class better suited for her job duties. With regard
to her claim that she was denied the opportunity to take her preference of
the Advanced Budget Stimulation course or a Budget Analysis course, the
record reveals S1 approved her to take her preference of either course.
The record also reveals complainant signed up for the Advanced Budged
Simulation course from August 18, through August 21, 2003, and then
after one day of training, she dropped the course because she found it
was similar to one she had already attended. The record reveals that
complainant took another course, Statistical Analysis later in 2003.
Upon review, we find complainant failed to show she was subjected to
discrimination with regard to training based on any of her claimed
protected bases.
With regard to her claim regarding rotational assignments, the record
reveals complainant's supervisor since April 2003, S2, stated that
rotational assignments are provided when an employee has become proficient
in one area of the budget to provide additional experience. S2 stated
that since complainant has completed few assignments in her current budget
areas and there often serous errors in assignment that are completed,
she has not been offered a rotational assignment. Complainant has not
presented any evidence to rebut the agency's articulated legitimate,
non-discriminatory reason for the denial of a rotational assignment.
With regard to her claim surrounding the agency's application of the
rules regarding time, leave, and attendance, we find the record shows
the same policies applied office-wide. Specifically, the record shows
that there was a policy in place that all employees must notify their
team leader or supervisor when they are going to be away from their desk
for a period of time. Also, the record reveals that all employees must
receive advance notice to work overtime and compensatory time from their
supervisor. We find complainant failed to show that she was treated
differently than a similarly situated employee outside her protected
class with regard to time and attendance policies.
With regard to her claim that although she was a member of the 2003 Awards
Panel, she was denied the opportunity to participate in the performance
awards panel, we find the record does not support complainant's claim.
Specifically, the record reveals complainant was a member of the
Awards Panel and was invited to participate in the panel's work.
The record reveals complainant expressed some concern in attending a
meeting head by S1, her former supervisor at the time. The record shows
that complainant's concerns with S1 were not held by other members of
the Awards Panel; however, complainant was provided the opportunity to
provide her input via electronic mail to the Awards Panel as opposed to
attending the August 12, 2003 meeting.
With regard to her claim that she was not selected to the Office of Budget
vacancy assessment panel, the record supports the AJ's determination
that complainant did not express interest in serving on the vacancy
assessment panel. Complainant does not rebut the agency's legitimate,
non-discriminatory explanation for complainant's non-selection for this
panel.
With regard to her non-selection for the Budget Analyst position posted
under VAN-340, the record reveals that the position was cancelled and
no one was selected for this position.
With regard to the non-selection for VAN Q-752, the record reveals
that the selectee was chosen based on her experience and skills.
The selecting official also noted that the selectee had additional
professional expertise, in that she already functioned as a GS-13 and
was a certified public accountant. We note complainant did not rebut
the agency's legitimate, non-discriminatory reasons and did not show
that her qualifications were plainly superior to those of the selectee.
With regard to the claim that she was denied the opportunity to compete
for the Presidential Management Intern and the Outstanding Scholar
Program, we note that the record reveals that both positions were
advertised and complainant failed to apply for either program. Thus,
complainant failed to show that she was discriminatorily denied the
opportunity to compete for these positions.
Finally, with regard to complainant's claim that she was continuously
denied opportunities for reassignments, the record reveals that S2 stated
complainant has not been considered for reassignment because she has not
been completing assignments timely and noted that the team leader and
S2 have completed many of complainant's assignments. Complainant has
not rebutted the agency's legitimate, non-discriminatory reason for not
considering complainant for reassignment. Thus, construing the evidence
to be most favorable to complainant, we note that complainant failed
to present evidence that any of the agency's actions were motivated by
discriminatory animus toward her protected classes.
Accordingly, the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
February 23, 2007
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
2 Complainant was subsequently removed from the agency. The removal
action is not at issue in the instant matter.
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0120055577
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120055577