01A22011
09-26-2003
Shirley Staib, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Shirley Staib v. Social Security Administration
01A22011
09-26-03
.
Shirley Staib,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A22011
Agency No. SSA-01-0065
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision (FAD) of
the agency concerning her allegation that the agency violated � 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted by the Commission in accordance with 29 C.F.R. �
1614.405.
ISSUE PRESENTED
The issue presented in this appeal is whether complainant proved, by
a preponderance of the evidence, that she was discriminated against
because of her disability (multiple sclerosis) when management failed
to take effective action to stop three co-workers from subjecting her
to harassment.
BACKGROUND
Complainant's formal complaint was filed on November 2, 2000.
Following an investigation, complainant was provided a copy of the
investigative file and notified of her right to request a hearing before
an EEOC Administrative Judge (AJ). Complainant waived her right to a
hearing. The agency issued a final decision, dated February 11, 2002,
which found that complainant was an individual with a disability but
that she had not established discrimination. It is from this decision
that complainant now appeals.
At the time of her complaint, complainant worked as a Claims
Representative, GS-11, in the agency' Kingston, New York office. She had
worked in that office for over 20 years. Because of a shoulder injury,
she required certain accommodations at work. In 1999, after being
diagnosed with multiple sclerosis, she required additional accommodations,
i.e., she was allowed to conduct interviews over the phone instead of
in person. The record indicates that three co-workers, C-1, C-2 and
C-3, were upset with complainant over the years due to the perception
that she was not performing an equal amount of work. This perception
intensified after complainant was diagnosed with multiple sclerosis.
Complainant stated that she was subjected to rude behavior, shunning and
hostile attitudes. She also indicated that these three employees often
made derogatory comments about her when she was in earshot of them, e.g.,
calling her lazy and questioning whether she was truly disabled. Finally,
complainant stated that the three employees also refused to cooperate
with her when it came to completing work assignments. For example,
she indicated that, after being off work for testing and treatment,
she returned to find a great deal of unprocessed work on her desk.
Complainant accused her supervisor, A-1, of not trying to get other
people in the unit to do the work. Finally, according to complainant,
management was aware of the harassment that she was subjected to, but
failed to address the matter.
The record contains a statement from C-4, a co-worker of complainant from
March 1997 until January 2001. According to C-4, he was present when
complainant returned to work after an extended absence. Complainant
approached C-1's office with a file in order to ask a question.
C-4 stated that C-1 �was very nasty to [complainant]. She started
harshly scolding [complainant], stating that [complainant's] absence had
caused her hardship, and that [she] shouldn't have taken so much time
off.� When complainant, whom he described as being very unsteady on
her feet, started to walk away, C-1 pursued her and continued yelling.
C-4 also stated that, before the office received voice mail, the practice
was that when a telephone call was received the person who answered the
telephone would assist the caller. However, C-1, C-2 and C-3 would not
assist the callers who sought complainant; instead, they would merely
take messages. C-4 stated that he witnessed numerous phone message
slips on complainant's desk.
In October 1999, C-4 stated that he witnessed A-2, the District
Manager and complainant's second-level supervisor, pressuring her to
work overtime. Complainant indicated that she was not well enough to
work overtime. A-2 indicated that C-1, C-2 and C-3 were going to work
overtime, and he did not �know if [he would] be able to keep the three
of them off [complainant],� if she did not work overtime. In November
1999, C-4 stated that he was present at a meeting where A-1 told the
staff that complainant had multiple sclerosis. Complainant was absent
that day. According to C-4, C-1 made the comment that, �I thought
reasonable accommodation for [complainant] wasn't supposed to negatively
impact anyone else.� Finally, C-4 indicated that he once spoke to A-2
in order to express his concerns about complainant's welfare. A-2,
he stated, indicated that, �Basically, they think she is dogging it,
especially [C-3].� C-4 also stated that A-2 indicated that he �was
afraid to set limits with [C-1, C-2 and C-3] because they might lower
their productivity.�
C-5, a Receptionist stated that C-1, C-2 and C-3, made remarks about
complainant �not doing her job.� C-5 felt that they thought she was
getting special privileges because of her disability.
C-6 testified that C-1 and C-3 resent the reasonable accommodations
granted to complainant and feel that she is not carrying her weight
with regard to work. She also indicated that the employees showed no
sensitivity to complainant's needs. C-6 stated that:
This goes beyond a lack of understanding and a lack of sympathy, as I
believe that the two employees actively harass and are hostile towards
the complainant. The harassment is not so much overt acts taken directly
against her, but rather a constant pattern of rude comments made in
ear shot of her, shunning her and not cooperating with her with regards
to work.
Finally, C-6 indicated that she brought the issue of harassment to
A-2's attention.
A-2 testified that complainant spoke to him about C-1, C-2 and C-3's
behavior in October 1997. She felt that the employees were meeting
together in the office and publicly discussing what they believed was
complainant's lack of productivity. According to A-2, he questioned C-1.
C-1 told him that complainant �wastes� time in personal telephone
conversations during the busiest time of day. She also felt that
complainant's accommodation, conducting interviews over the phone instead
of in person, created a backlog. A-2 spoke to A-1 and was told that C-1,
C-2 and C-3 were bossy in their behavior and had recently been trying to
run his unit. A-1 also told A-2 that complainant had a habit of being
very �folksy� in her telephone calls with customers, thereby creating
the impression that she was engaging in personal telephone calls.
A-2 maintained that:
I remember receiving and investigating [complainant's] generalized
statement about lack of appreciation for her work accomplishments from
her peers and also about group discussions between the 3 ladies accused,
which she presumed were about her. However, I have no recollection of
any definitive reports of harassment actions.
With respect to addressing complainant's concerns, A-2 identified four
possible remedies. He asked complainant to eliminate her �folksy�
style over the telephone, he asked C-1, C-2 and C-3 to stop any public
discussion of complainant's productivity, he indicated that he would
monitor the problem in the future, and he discussed with A-1 ways to
eliminate possible incorrect perceptions regarding complainant's work
and productivity.
A-2's discussions with C-1, C-2 and C-3 resulted in a grievance
being filed. The grievance was resolved, on December 11, 1997, by
a statement of understanding. In the statement, signed by C-1, C-2,
C-3, A-1, A-2 and a union representative, the parties agreed with the
concept of reasonable accommodation. They also agreed that there should
be additional communication when workloads were redistributed due to a
reasonable accommodation, the interview procedure needed to be reviewed,
the professionalism of all workers should be recognized, employees should
treat each other with dignity, respect and understanding, and that morale
would be positively influenced by improved relations.<1>
According to A-2, early in 2000, management brought in outside experts to
provide sensitivity training that focused on allegations of harassment.
He also indicated that he spoke to C-1, C-2 and C-3 about changing their
image of being a clique.
ANALYSIS AND FINDINGS
An individual with a disability is one who: 1) has a physical or mental
impairment that substantially limits one or more of that person's major
life activities; 2) has a history of such impairment; or 3) is regarded as
having such an impairment. 29 C.F.R. � 1630.2(g). Major life activities
include the functions of caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). An impairment is substantially limiting when it
prevents an individual from performing a major life activity or when it
significantly restricts the condition, manner or duration under which an
individual can perform a major life activity. 29 C.F.R. � 1630.2(j). The
individual's ability to perform the major life activity must be restricted
as compared to the ability of the average person in the general population
to perform the activity. Id. After a careful review of the record as
a whole, the Commission finds that complainant is an individual with a
disability within the meaning of the regulations. The record indicates
that complainant's multiple sclerosis causes her to be so fatigued that
she is substantially limited in the major life activity of walking.
In this regard, we note the testimony of A-2 that, the agency out of
concern for her safety, installed a handrail to allow her to use an
adjacent city parking lot that was closer than the office's regular
parking lot. We also note the testimony of C-4 that complainant was very
unsteady on her feet when she returned to work after an extended absence.
Thus, we find that complainant's ability to walk is restricted as compared
to the ability of the average person in the general population.
Complainant also must show that she is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). The regulation
defines the term qualified individual with a disability as meaning,
with respect to employment, a disabled person who, with or without a
reasonable accommodation, can perform the essential functions of the
position in question. There is no dispute by the agency that complainant
can perform the essential functions of her position. In fact, A-2 stated
that complainant �should know we are happy with her as an employee.�
It is well-settled that harassment based on an individual's disability is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
In order to establish a claim of harassment, complainant must show
that: (1) she is a qualified individual with a disability covered under
the Rehabilitation Act; (2) she was subjected to unwelcome conduct;
(3) the harassment complained of was based on her disability; (4)
the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Flowers v. Southern Reg'l Physician
Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors
Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In a case of
co-worker harassment, an agency is responsible for acts of harassment
in the workplace where the agency (or its agents) knew or should have
known of the conduct, unless it can show that it took immediate and
appropriate corrective action. Equal Employment Opportunity Commission
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment
by Supervisors (June 18, 1999).
Upon review, we find that complainant has established her claim of
harassment based on her disability. As noted above, we find that
complainant is covered by the Rehabilitation Act, and that she was
subjected to unwelcomed conduct. We also find that complainant has shown
that, at least in part, the harassment complained of was based on her
multiple sclerosis. In making this finding, we note: C-1's comments
regarding complainant's absence and its effect on her; the resentment of
the reasonable accommodations granted to complainant; C-1, C-2 and C-3
making remarks about complainant �not doing her job;� and A-2 pressuring
complainant to work overtime, even though she indicated that she was not
well enough to work, because C-1, C-2 and C-3 would presumably be upset.
As to part (4) of her claim of harassment, we find that complainant has
shown that the harassment created an intimidating, hostile, or offensive
work environment. In this regard, we note the testimony of C-6 that
there was a constant pattern of rude comments made in complainant's
ear shot, shunning and a lack of cooperation with respect to her work.
Finally, as to the part (5) of her claim, we find there is a basis for
imputing liability to the agency. The record indicates that A-1 and
A-2 were aware that complainant was being harassed by C-1, C-2 and C-3.
This behavior, which had gone on for a number of years, intensified when
complainant was diagnosed with multiple sclerosis in 1999. In light of
the fact that C-1, C-2 and C-3 had already engaged in harassing behavior
towards complainant over a period of years, we find that management
failed to take effective action to remedy this situation after 1999.
On the contrary, C-4's testimony indicates that management either used
the harassing behavior to pressure complainant to work overtime or at
least acquiesced in it so as to not lower C-1, C-2 or C-3's productivity.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in this
decision, we REVERSE the FAD.
ORDER
The agency is ordered to take the following remedial action.
(1) The agency shall provide EEO training on eliminating acts of
harassment in the workplace to A-1, A-2, C-1, C-2 and C-3. The Commission
does not consider training to be a disciplinary action.
(2) The agency shall consider taking disciplinary action against A-1,
A-2, C-1, C-2, and C-3. The agency shall report its decision. If the
agency decides to take disciplinary action, it shall identify the action
taken. If the agency decides not to take disciplinary action, it shall
set forth the reason(s) for its decision not to impose discipline.
(3) The agency must take steps to insure that complainant is no longer
subjected to harassment by C-1, C-2 or C-3. The agency will aggressively
monitor this situation in order that this be accomplished.
(4) The agency shall conduct a supplemental investigation pertaining
to complainant's entitlement to compensatory damages incurred as a
result of the agency's discriminatory actions in this matter. The agency
shall afford complainant sixty (60) days to submit additional evidence
in support of a claim for compensatory damages. Complainant shall
submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993))
in support of her claim. Within forty-five (45) days of its receipt
of complainant's evidence, the agency shall issue a final decision
determining complainant's entitlement to compensatory damages, together
with appropriate appeal rights.
(5) The agency is further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Kingston, New York District Office
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
____09-26-03______________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which found
that a violation of Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The Kingston, New York District Office supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The Kingston, New York District Office has been ordered to remedy an
employee affected by the Commission's finding that she was subjected to
a hostile work environment based upon her disability. As a remedy for
the discrimination, the Kingston, New York District Office was ordered
to provide EEO training to management officials and the employees
found to have harassed the affected employee. The Kingston, New York
District Office was also ordered to determine if the affected employee
was entitled to compensatory damages. The Kingston, New York District
Office will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws.
The Kingston, New York District Office will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, Federal equal employment opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 1614
1The date of the statement of understanding indicates that it was signed
before complainant was diagnosed with multiple sclerosis in 1999.