Geraldine S. W. Collins,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,1
(U.S. Immigration and Customs Enforcement),
Agency.
Appeal No. 01200510052
Hearing No. 330-A2-8080X
Agency No. I00C119
DECISION
On October 24, 2004, complainant filed an appeal from the agency's
November 19, 2004 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The appeal
is deemed timely and is accepted pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
At the time of events giving rise to this complaint, complainant worked as
an Asylum Officer, GS-903-12, at the Houston Asylum Office in Houston,
Texas. On June 8, 2000, complainant contacted an EEO Counselor and
filed a formal EEO complaint on August 7, 2000 (which she subsequently
amended), alleging that she was discriminated against on the bases of
race (African-American), disability (impairment: carpal tunnel syndrome)
and in reprisal for prior protected EEO activity (arising under Title
VII)3, when she was subjected to a hostile work environment and disparate
treatment, based on the following incidents:
(1) Between 1997 and April 2000, management subjected complainant to
sixty-eight incidents of harassment;
(2) On April 26, 2000, complainant's supervisor (S1) verbally harassed
and demeaned her;
(3) On June 1, 2000, S1 instructed her not to be late to work;
(4) On June 6 and 7, 2000, S1 denied complainant's request for union
representation;
(5) In July 2000, management accommodated her co-worker's disability while
management failed to accommodate complainant's physical disability;4
(6) On July 17, 2000, S1 issued a letter to complainant's doctor that
falsified documents and information;
(7) On July 21, 2000, a co-worker informed complainant that if she did
not provide information regarding her physical disability, she would
receive disciplinary action;
(8) On August 17, 2000, S1 required complainant's doctor to fax
complainant's medical records or complainant would be fired;
(9) On October 4, 2000, S1 became upset because complainant was using
a co-worker's office to conduct interviews;
(10) On November 8, 2000, complainant's physician discontinued treating
complainant's disability because of the alleged continuous harassment
by S1;
(11) On December 20, 2000, complainant was given a memorandum of
counseling for failure to properly report damage to her computer;
(12) On December 26, 2000, complainant's physical disability failed to
be accommodated with special office supplies;
(13) In 2001, complainant failed to be selected for additional training;
(14) In 2001, complainant was not allowed to work overtime to conclude
an interview while a co-worker was regularly permitted to do so;
(15) In March 2001, complainant received constant monitoring of her work
while a co-worker was not disciplined for his inability to perform his
duties;
(16) On April 2, 2001, complainant was forced to take on an extra
assignment for a co-worker; however, she did receive an appreciation
letter for her efforts on April 6, 2001;
(17) On April 19, 2001, only complainant was required to submit
documentation regarding long distance telephone calls that she made
during a circuit ride assignment;
(18) On May 23, 2001, S1 denied her request to bring her
disability-accommodating equipment to Miami to assist her in conducting
asylum interviews;
(19) On May 24, 2001, a supervisor repeatedly solicited contributions
from complainant;
(20) On July 23, 2001, complainant was scheduled to conduct asylum and
Nicaraguan Adjustment and Central American Relief Act (NACARA) interviews
after returning from her detail;
(21) On July 23, 2001, complainant became aware that a supervisor had
removed personal property from her office;5
(22) On August 1, 2001, complainant learned that two of her co-workers had
entered her office and removed boxes without her knowledge or consent;
(23) On August 27, 2001, a supervisor informed complainant that her
Continuation of Pay (COP) had not been authorized by the Department of
Labor;
(24) On September 5, 2001, complainant was assigned to pre-screen files
and was not permitted to conduct interviews; and
(25) Between October 29 and 31, 2001, complainant was not granted four
days to write her case reports as indicated in the Union Contract and
Officer's Performance Work Plan (PWP).
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 and the AJ held a hearing on June 26, 27, 30 and
July 1 and 7, 2003, and issued a decision on September 28, 2004.
In his decision, the AJ found that complainant failed to prove that
she was subjected to a hostile work environment based on her race, sex,
disability, religion or due to her prior EEO activity. The AJ noted that
he found no evidence of a racial or retaliatory motive. The AJ also noted
that it seemed that complainant initiated some of the problems she faced
in the office by being "combative with her supervisors." AJ Decision at
11. Under a disparate treatment analysis, the AJ found that complainant
failed to establish a prima facie case of discrimination. The AJ noted
that complainant's comparators are not similarly situated concerning the
incidents at hand. The AJ also found that management was not aware of
complainant's prior EEO activity at the times when incidents (1) through
(21) occurred. The AJ found however, that management was aware of such
activity when incidents (22) through (25) occurred. The AJ found that
complainant established a prima facie case of reprisal discrimination as
to those four issues only. The AJ further found however, that the agency
provided legitimate, nondiscriminatory reasons for its actions, which
complainant has not shown to be pretextual. As to disability, the AJ
noted that the facts show that complainant's alleged disability was only
temporary, and therefore, she is not protected by the Rehabilitation Act.
The AJ concluded by finding no discrimination. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination as alleged.
On appeal, complainant, through counsel, contends that "direct and
circumstantial evidence" of sworn affidavits and documentation of record
establishes a prima facie case of disparate treatment of complainant, as
well as a hostile work environment. Additionally, complainant focuses
on a few particular issues in this case, and explains why the agency's
actions were discriminatory. For instance, complainant contends that
she was subjected to sexual harassment when an Officer stood outside
of the bathroom while complainant was inside, waited for her to exit,
and then escorted her out of the building. Complainant contends that she
was subjected to religious discrimination when her religious inspirational
notes were removed from her office and office door. Complainant contends
that she was treated disparately when the dress code was not uniformly
applied to the White females who were in actual violation, unlike herself.
Additionally, complainant contends that when complainant asked for a
reasonable accommodation, the agency made an unprecedented transfer of
herself from a GS-12 Asylum Officer position to the position description
of a GS-0303-05 Asylum Clerk, which resulted in complainant not having
the opportunity for promotion, and not having the privilege to compete
for incentive awards, as did the other Asylum Officers. In response,
the agency requests that we affirm the final order.
Initially, we address the fact that the hearing was partially conducted
telephonically, without the objection of the parties.6 The Commission
has held that testimony may not be taken by telephone in the absence of
exigent circumstances, unless at the joint request of the parties and
provided special conditions have been met. Louthen v. United States
Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).7 Since the
facts of this case pre-date Louthen however, we will assess the propriety
of conducting the hearing telephonically, by considering the totality
of the circumstances. The witnesses who testified telephonically in
this case were complainant's Hispanic/Asian immediate supervisor, and
a former Asylum Officer (Black/Ethiopian). Both witnesses testified
to their belief that the Director of the Office discriminates against
minorities and or retaliates against individuals who engage in the EEO
process.8 First, we do not find that there were exigent circumstances
in this case for which a telephonic hearing was required. Nevertheless,
complainant has not pointed to, nor do we discern any specific issues
of credibility that might have been affected by the taking of these
two witnesses' testimony telephonically. Under these circumstances,
the Commission finds that the taking of the testimony telephonically
constituted harmless error. See Sotomayor v. Department of the Army,
EEOC Appeal No. 01A43440 (May 17, 2006).
The AJ found that complainant was not entitled to protection from
the Rehabilitation Act because she did not have a disability within
the meaning of the Act. However, even assuming that complainant was
disabled, she has not shown that at the relevant time she was a qualified
individual with a disability, which is also a requirement for coverage.
The HAO Director stated that there is no "light duty" in their office, and
basically asserts that complainant could not do the essential functions
of her Asylum Officer position of lifting, gripping, taking notes, etc.
Although complainant asserts that the agency made an unprecedented
(and discriminatory) transfer of herself from a GS-12 Asylum Officer
position to the position description of a GS-0303-05 Asylum Clerk
(which did not accommodate her disability), complainant has not shown
that she was qualified for her Asylum Officer position, or any other
vacant, funded position at the agency, and it is her burden to do so.
In addition, although complainant contends that the agency was slow
in providing her with reasonable accommodation, substantial evidence
of record indicates that she was provided with several items such as
ergonomic equipment, special pens, chair cushions and lumbar support,
and voice recognition software. Here, we find that complainant has not
proven that the agency violated the Rehabilitation Act.
As to the hostile work environment claim and disparate treatment claims,
the AJ's findings that complainant did not show that the actions were
based on her membership in a protected group, are supported by substantial
evidence in the record. Briefly, as to the claim that she was sexually
harassed when an Officer stood outside of the bathroom while complainant
was inside, waited for her to exit, and then escorted her out of the
building, we note that management has provided an explanation for this
action; namely, complainant was at work when she should not have been
there, and when the manager told her she needed to leave, she immediately
went to the restroom. He followed her there and waited for her, because
he could not leave until he was sure she had left the office. Substantial
evidence of record therefore, indicates that this incident was not related
to complainant's sex or intended to be sexual in nature. Complainant does
not contend that the manager entered the women's restroom.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final order.
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:
February
9,
2007
______________________________
__________________
Carlton M. Hadden, Director
Date
Office of Federal Operations
1 This complaint was originally filed with the Immigration
and Naturalization Service, formerly a component of the Department
of Justice. However, effective March 1, 2003, in accordance with the
Homeland Security Act, this complaint came under jurisdiction of the
Department of Homeland Security.
2 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
3 Complainant contends that she was subjected to reprisal for
participating in the EEO case of a co-worker.
4 Complainant's doctor stated that she could return to light duty with
limiting factors of "no gripping, typing or writing with hands."
5 Some of the property that was allegedly removed was complainant's
religious notes/posters. Complainant does not contend that she requested
to maintain religious notes/posters in her office as a religious
accommodation within the meaning of Title VII, or that such request
was denied. Complainant contends that a particular Supervisory Asylum
Officer (SAO) removed the notes in order to discriminate against her due
to her religious beliefs. See ROI, Exhibit 8, at 2. Complainant points
out on appeal that the SAO admitted on March 13, 2002, that he removed the
literature because no other Asylum Officer had non-work related literature
on their door. A review of the record also indicates that the SAO stated
that there were some posters on complainant's window which complainant
was asked to remove for security reasons, as they were blocking the view
into her office. Id. Either reason is a legitimate, non-discriminatory
reason. Although complainant contends that management's motivation was
discrimination, substantial evidence of record indicates otherwise.
6 Two of the thirteen witnesses testified by telephone. We note that
the mere lack of objection to the fact that the hearing was conducted
telephonically, is not dispositive. See Louthen v. United States Postal
Service, EEOC Appeal No. 01A44521 (May 17, 2006).
7 In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent.
When assessing prior instances of telephonic testimony, the Commission
will determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further, where
telephonic testimony was improperly taken, the Commission will scrutinize
the evidence of record to determine whether the error was harmless.
8 We note that the Director states that she is the individual who selected
complainant for her Asylum Officer position in January 1997.
??
??
??
??
2
01A51005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036