0120102932
05-24-2012
Phyllis L. Black, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Phyllis L. Black,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120102932
Agency No. IRS-09-0626-F
DECISION
On July 20, 2010, Complainant filed an appeal from the Agency's June 14, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-1101-9, Offer-in Compromise Examiner, at the Agency's facility in Memphis, Tennessee. On June 27, 2009, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the bases of disability (type II diabetes, gout, arthritis, hypertension and uncontrollable imbalance requiring a walker), age (57), and in reprisal for prior protected EEO activity when:
1. On a continual basis, management inputs elements or vapors into her work environment through equipment, i.e., computer and other work apparatuses, to make her ill with symptoms that have been the bases of management's disciplinary actions taken against her.
2. In August 2008, Complainant's supervisor disclosed confidential information about her when he left a document in the work area.
3. On April 16, 2009, Complainant was suspended from duty and pay for a period of five calendar days.
4. Since April 2009, management has been unfair by issuing Complainant more work assignments than her peers and assigned her work while she was serving a five day suspension.
5. On June 9, 2009, Complainant was issued an annual appraisal with an overall rating of 3.8, "Exceeds Fully Successful," that was lower than ratings issued to her peers.
6. Since July 2009, Complainant's new manager has been asking her peers if they smell her body odor and he asks them for an explanation when they say they have not smelled any odor.
7. On July 27, 2009, management caused Complainant's computer to malfunction, which disrupted her work because she was unable to access her e-mail.
Complaint also claimed that the alleged incidents created a hostile work environment. 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).
Initially, the Agency addressed claim (3) and dismissed it on procedural grounds pursuant to 29 C.F.R. � 1614.107(a)(4). Id. at 2. The Agency determined that Complainant elected to raise her five day suspension through the negotiated grievance procedure prior to filing the instant complaint. Id. According to the Agency, Complainant filed a grievance on December 16, 2008, and the decision was issued on January 29, 2009. Id. The Agency stated that Complainant served the suspension from April 10, 2009 - April 14, 2009, and filed the instant complaint on June 27, 2009. Id.
With regard to claim (1), the Agency noted that Complainant stated that vapors were being emitted in the workplace to cause her to have an incontinence problem. Id. at 3. According to Complainant, her disability sometimes makes it difficult for her to get to the restroom in time. Id. The various Agency officials denied that vapors were being emitted from computers or light fixtures. Id. The Program Manager asserted that it is Complainant's body odor not some vapor being emitted from the computer and lights that is bothering Complainant. Id. As for claim (2), Complainant stated that a coworker viewed on his supervisor's desk a document that contained confidential information about her hygiene. Id. at 4. Complainant maintained that her supervisor told the coworker that he did what his manager told him to do. Id. The supervisor acknowledged that an employee was in his office and may have seen something on his desk concerning Complainant. Id. The coworker stated that the supervisor turned the document over when he realized that she had seen it. Id.
With respect to claim (4), the Program Manager denied that Complainant received more cases than her coworkers. Id. According to the Program Manager, employees can be assigned up to 30 cases and managers review the inventory report to see how many cases are assigned to each employee. Id. In terms of claim (5), Complainant maintains that her performance rating did not reflect her performance and two other employees had higher ratings. Id. at 5. Complainant further stated that her former supervisor lowered her rating and that her new supervisor should have completed her appraisal. Id. According to Complainant's former supervisor, Complainant's performance rating was consistent with her midyear evaluation and her annual rating was consistent with the prior year's rating. Id. Further, the former supervisor stated that the new supervisor had been serving in an acting capacity for fewer than 60 days when Complainant's appraisal was due. Id.
With regard to claim (6), Complainant argued that her new supervisor asked a coworker if she smelled her and utilized her response to justify sending her home. Id. The supervisor denied that he inquired of Complainant's peers about her body odor. Id. According to the coworker, the supervisor did not ask her about Complainant's body odor but he did make comments about it which other employees could hear. Id. As for claim (7), the Agency noted that none of the management officials and none of Complainant's coworkers were aware of a computer malfunction on July 27, 2009. Id. at 6.
The Agency utilized a disparate treatment analysis with regard to claims (4) and (5). Id. at 8. The Agency determined that Complainant failed to establish a prima facie case of discrimination under the alleged bases with regard to each of these claims. Id. at 9-10. As to claim (4), the Agency stated that Complainant failed to identify any employees, outside her protected groups, who received less work than her. Id. at 9. The Agency determined that assuming Complainant established a prima facie case, it nevertheless articulated a legitimate, nondiscriminatory reason for its handling of this matter. Id. The Agency explained that managers assign work based on an employee's inventory level and that an employee can be assigned 20 to 30 cases. Id. The Agency determined that Complainant provided no evidence that any of the alleged bases were factors in the assignment of work and thus failed to establish that the Agency's explanation was pretext for discriminatory intent. Id.
With regard to claim (5), the Agency determined that Complainant failed to establish a prima facie case because she did not show that her performance was such that she reasonably expected to receive a higher rating or that her supervisor was predisposed to discriminate against members of her protected groups. Id. at 10. The Agency further determined that Complainant failed to establish any nexus between her prior protected EEO activity and her performance evaluation. Id. The Agency stated that at Complainant's midyear review, she was advised that she was failing one critical job element. Id. According to the Agency, Complainant received a rating of "Exceeds Fully Successful", which was the rating she received the previous year. Id. The Agency noted that Complainant contended that her evaluation did not reflect her performance and younger employees without disabilities or prior EEO activity received higher ratings. Id. However, the Agency determined that Complainant failed to show pretext and provided no evidence that her performance deserved a higher rating or that the assessment of her performance was not accurate or based on discriminatory factors. Id.
The Agency analyzed all claims except for claim (3) with regard to Complainant's claim of a hostile work environment. Id. at 8. The Agency determined that none of the alleged acts of harassment, taken alone, or considered together, were sufficiently severe to constitute a hostile work environment. Id. at 11. The Agency noted that management denied that vapors were coming out of Complainant's office equipment and the supervisor denied questioning Complainant's coworkers about whether they were aware of a body odor associated with Complainant. Id. The Agency noted that Complainant's hygiene has been a concern to management for some time as she has been counseled, sent home and suspended as a result of her hygiene issues. Id. Further, the Agency stated that Complainant's coworkers had complained of the body odor situation and that Complainant had a hygiene accident in the office. Id. The Agency acknowledged that one employee stated he was asked if he smelled Complainant. However, the Agency maintained that management has a legitimate responsibility to maintain a safe working environment for all of its employees and that unless the conduct is severe, a single incident or isolated incidents is not regarded as discriminatory harassment. Id.
As to the disclosure of confidential information about Complainant to other employees, the Agency noted that an investigation was conducted and concluded that although an unintentional disclosure may have occurred, there is no evidence that the documents were confidential or related to Complainant's medical condition. Id. The Agency noted that claims (4) and (5) concern work assignments and the performance appraisal and that it has already been determined that no discrimination was connected with either claim. Id. With regard to claim (7), the Agency noted that none of the management officials or Complainant's coworkers had any knowledge of a computer malfunction on July 27, 2009. Id. The Agency stated that it is implausible that management would cause a computer malfunction preventing employees from completing their work. Id. Thereafter, Complainant filed the instant appeal.
In response, the Agency asserts that the instant appeal is untimely because it was filed one day after the expiration of the thirty day filing period. According to the Agency, its final decision was mailed to Complainant on June 14, 2010, and since Complainant does not indicate in her appeal when she received the final decision, it is therefore assumed it was received on June 19, 2010, within five days of mailing. The Agency states that Complainant filed her appeal on July 20, 2010, which was untimely by one day. With respect to the dismissal of claim (3), the Agency submits relevant pages from its collective bargaining agreement to establish that Complainant had the right to file a grievance claiming discrimination regarding her suspension. The Agency asserts that this claim was properly dismissed as the suspension was the subject of a previously filed grievance.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies that its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) she is an "individual with a disability"; (2) she is "qualified" for the position held or desired; (3) she was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp. Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the Agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy her burden of proof, Complainant must then demonstrate by a preponderance of the evidence that the Agency's proffered reason is a pretext for disability discrimination. Id.
Initially, we shall address the Agency's assertion that the instant appeal is untimely. There is no evidence in the record as to when Complainant received the final agency decision. In light of there being no evidence to the contrary, we find that this appeal was filed in a timely manner, within the 30-day limitation period.
With respect to the Agency's dismissal of claim (3), we observe that the negotiated agreement allows for the raising of a discrimination claim in a grievance. Complainant made an election to pursue her discrimination claim regarding the suspension through the grievance procedure rather than the EEO process when she filed her grievance before she filed her EEO complaint. Accordingly, the Agency's dismissal of claim (3) pursuant to 29 C.F.R. � 1614.107(a)(4) on the grounds that she elected to pursue the matter through the negotiated grievance process was proper.
As to the merits of the remaining claims, we shall assume that Complainant is an individual with a disability who has established a prima facie case of disability discrimination. We shall also assume arguendo that Complainant has established a prima facie case of age discrimination and reprisal. The Agency stated as to claim (1) that it has not input elements or vapors into her work environment through office equipment to cause her to become ill. Rather, the Agency asserts that Complainant's incontinence has caused her to develop a body odor. The Agency noted that it offered to relocate Complainant's work station closer to the restroom but she declined the offer. As for claim (2), the Agency acknowledged that it unintentionally allowed material pertaining to Complainant that was on a supervisor's desk to be viewed by another employee. The Agency stated that the material was not medical documentation but rather may have been related to the Inspector General's investigation of Complainant. In terms of claim (4), the Agency explained that Complainant was not assigned more cases than her peers and employees can be assigned up to 30 cases. As for claim (5), the Agency noted that Complainant's "Exceeds Fully Successful" performance rating was consistent with her recent prior ratings. Further, the supervisor stated that Complainant at her mid-year review had ratings of Met" and "not Met" in two critical elements. With regard to claim (6), the Agency denied that the manager asked Complainant's coworkers about her body odor. As for claim (7), the Agency stated that no management officials were aware of computer malfunctions occurring on July 27, 2009. We find that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue.
Upon review of Complainant's arguments to establish pretext, we find that Complainant has not submitted sufficient argument or evidence to refute the reasons provided by the Agency. Complainant has not offered any persuasive evidence to demonstrate that the vapors of which she complains are anything other than her body odor. With regard to the information about her that was viewed by a coworker on the supervisor's desk, it is evident that the supervisor was careless, but we discern insufficient evidence to establish that this action reflected discriminatory intent. We observe no support in the record for Complainant's contention that she received more cases than her coworkers. Complainant has not made a persuasive showing that she merited a higher performance rating than "Exceeds Fully Successful." As to Complainant's new supervisor allegedly questioning coworkers whether they smelled her body odor, it is unclear whether one coworker was asked, but it does appear that coworkers could hear this supervisor making comments about Complainant's body odor. Nonetheless, there is no indication that any questioning or comments were attributable to discriminatory intent. As to the alleged computer malfunction, there is no evidence in the record to support Complainant's contention that a malfunction affected her computer on July 27, 2009. Even if a malfunction did occur then, Complainant has not established that it was the result of management's discriminatory intent.
Finally, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), complainant's claim of harassment must fail. A prima facie case of harassment is precluded based on our finding that complainant failed to establish that any of the actions taken by the agency were motivated by her age, disability or prior protected activity. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
The Agency's dismissal of claim (3) on the grounds that Complainant raised the matter in a negotiated grievance procedure that permits allegations of discrimination is AFFIRMED. The Agency's determination in its final decision with regard to claims (1-2 and 4-7) that no discrimination occurred is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 24, 2012
__________________
Date
2
0120102932
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102932