Darcel LaRue v. Department of the Navy 01A41176 July 29, 2005 . Darcel LaRue, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency. Appeal No. 01A41176 Agency No. 02-61414-065 Hearing No. 120-2003-00280X DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts complainant's appeal from the agency's final order in the above-entitled matter. Complainant was employed as a Security Clerk, GS-4, at the agency's Norfolk Naval Shipyard in Portsmouth, Virginia. Complainant filed a formal complaint of discrimination alleging that the agency discriminated against her on the bases of race (African-American), sex (female), disability (crippling polio), and reprisal for prior EEO activity when: (a) Complainant was subject to a pattern of harassing conduct by her supervisor based on race, sex and disability when: In February 2002, complainant's most recent request that an emergency “panic button” be installed at her job site was denied, yet her co-workers who are less vulnerable all have “panic buttons.”<1> In February 2002, complainant was accused of being late when she signed in timely, yet a number of her co-workers are never questioned even when they are late and sign in as being on time. In February 2002, complainant was denied access to the internet yet her co-workers are provided access. Frequently, complainant is not informed of the time and place of meetings and events scheduled by her supervisors. Complainant is regularly warned/threatened that if she takes any time for lunch away from her workstation she will be docked, yet her co-workers frequently take time to go to the bank/credit union or to get lunch and are not docked or questioned when they are gone for more than 30 minutes. In January 2002, complainant's supervisor permitted her to go for an extended lunch with some co-workers and then on her return she was told she had to take leave. Complainant was discriminated against on the basis of disability when during the months of January through April 2002, she was denied overtime. Complainant was discriminated against on the basis of disability when her supervisor continues to refuse to accommodate her need for a more accessible parking spot. Complainant was discriminated against on the basis of reprisal for current EEO activity when she was marked Absent Without Leave (AWOL) for .8 hours on April 23, 2002, and 1/3 hours on April 25, 2002. Administrative Judge's Dismissal Order Following the investigation of her complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ) on her complaint. Complainant's case was assigned to an AJ at the EEOC Richmond Area Office. On April 29, 2003, the AJ issued a Prehearing Scheduling Order informing the parties that their respective prehearing statements shall be submitted to the AJ on or before August 15, 2003. The record reveals that the agency mailed its prehearing submission on August 14, 2003. The record contains an August 15, 2003 facsimile to the AJ from the law office of complainant's attorney. The facsimile is signed by a paralegal in the law office and states that the letter is a request for a short extension in filing complainant's prehearing statement. The letter states that complainant's attorney “was not feeling well this morning and went to his doctor, who sent him to the emergency room with the suspicion that it is appendicitis. “ The facsimile stated that “[i]f it is not appendicitis, he anticipates coming into the office when he leaves the hospital and will fax the prehearing statement this evening, or Monday at the latest.” The record reveals that complainant's prehearing statement was submitted on September 9, 2003. On September 25, 2003, the AJ issued a Dismissal Order. In her Order the AJ noted that she received complainant's August 15, 2003 facsimile advising that her representative was ill that morning, but noting that he would send by facsimile the prehearing statement that evening or no later than Monday, August 18, 2003. The AJ states that complainant's prehearing statement was submitted by facsimile on September 9, 2003, without explanation. Thus, the AJ stated that in light of complainant's failure to comply with the April 29, 2003 Order, her request for a hearing is dismissed and her case is returned to the agency for a decision on the record. Complainant filed an appeal with the Commission postmarked December 2, 2003. In her appeal brief, complainant explains that her prehearing statement was late because her attorney required surgery, specifically an appendectomy, on the day the prehearing statement was due. She states her attorney filed the statement thereafter within a relatively short time. Complainant states that the AJ mischaracterized her attorney's August 15, 2003 facsimile. Complainant notes that in this facsimile, her attorney stated that he was referred to the emergency room for suspicion of appendicitis and noted that if he did not have appendicitis he would be in that weekend to finish the prehearing statement. Complainant noted that her attorney did have appendicitis and thus was unable to work that weekend. Complainant stated that the AJ was well aware of the reasons for the delay and attached an August 18, 2003 motion for a continuance in another case (that the same AJ granted) which was scheduled for a hearing on August 19, 2003. In the Motion for Continuance complainant's attorney stated that he had surgery on Friday night, August 15, 2003, to remove his appendix. Finally, complainant noted that the AJ did not issue a show cause order or call to check the status of the prehearing statement prior to dismissal of the present case. In response to complainant's appeal, the agency argues that the AJ's dismissal order was proper, the complaint was ripe for a decision without a hearing in favor of the agency, and the final decision on the complaint was not in error. With regard to the AJ's Order of Dismissal, the agency notes that complainant's attorney contacted the AJ on the same date the prehearing statement was due and explained that he became ill that morning and proceeded to the emergency room with suspected appendicitis, and that if it was not appendicitis he would return to the office and send the statement by facsimile that evening or Monday, August 18, 2003, the latest. The agency notes that complainant submits a copy of a Motion for Continuance dated August 18, 2003, addressed to the same AJ. The agency notes that in the Motion for Continuance, signed by the attorney, the attorney stated that “‘the surgery is not particularly debilitating, he is restricted on his physical abilities and is also on pain medication.'” The agency states one might wonder why the Motion for Continuance could be prepared and sent via facsimile but the prehearing statement could not also be sent the same date. Further, the agency notes the passage of twenty-four days from the date complainant's attorney submitted the Motion for Continuance in another case and the submission of the prehearing statement in the subject case. An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. § 1614.109(f)(3); EEOC Management Directive 110 Chapter 7, pp. 9-10 (1999). Such sanctions may include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, issuance of a decision fully or partially in favor of the opposing party, or other actions as appropriate. 29 C.F.R. § 1614.109(f)(3). After a careful review of the record, the Commission finds that the AJ did not abuse her discretion by dismissing complainant's request for a hearing. The record establishes that the Prehearing Scheduling Order notified parties that their prehearing submissions were due on or before August 15, 2003. Further, the Prehearing Scheduling Order states that failure to submit a Prehearing Statement may result in dismissal of the complaint or request for hearing, or other sanctions as deemed appropriate by the AJ. Complainant was therefore aware that her failure to timely submit a prehearing statement could result in sanctions. Although complainant did submit a request for a short extension of time to submit her prehearing statement we note that she did so on the afternoon of the last day the statement was due. Additionally, although complainant's attorney requested a short extension for submitting the prehearing statement we note that the statement was not submitted until September 9, 2003. Further, we note complainant fails to provide adequate explanation for her delay in submitting the prehearing statement following August 18, 2003, the date her attorney returned to work (as evidenced by the attorney's signed submission of the August 18, 2003 Motion for Continuance). On December 17, 2003, the agency issued a final decision on complainant's complaint finding no discrimination. With regard to her disability claim, the agency acknowledged that it regarded complainant as disabled. The agency stated that the major duties identified in complainant's position description included issuing temporary identification (ID) badges to employees and non-employees, issuing temporary vehicle passes, issuing photo ID badges to Activity employees, keeping daily reports of such issuances, operating a computer terminal, rotating through the Security Clearance Sections and performing the duties of each section, and other duties as assigned. The agency stated, however, due to her medical condition, complainant was assigned to the Video Control Room and performed limited duties consisting of showing a 32-minute video and preparing a monthly report. The agency stated that complainant was unable to perform the major duties of her position with or without reasonable accommodation and determined she was not a qualified individual with a disability under the Rehabilitation Act. With regard to her retaliation claim, the agency found complainant established a prima facie case or reprisal in that complainant contacted the EEO Office on March 3, 2002, and her supervisor (S1) stated he was aware of her EEO contact when he charged her AWOL on April 23, 2002, and April 25, 2002. With regard to issue (a)(2), the agency stated that complainant's team leader (TL) held discussions with complainant as well as with other co-workers about coming to work on time. TL stated that she never observed other employees who came in late but were not questioned about it. TL recalled one incident when complainant's time was questioned but denied reporting complainant to S1 for signing in on time when she was actually late. S1 maintained that he never questioned complainant's co-workers about their time because he never had similar problems with them. He stated he never took disciplinary action against complainant. He noted that he also discussed tardiness with other employees, including individuals outside complainant's protected groups. The agency noted that complainant's second level supervisor (S2) stated that complainant was often late and prior to July 2001, he had discussions with her about her tardiness. S2 stated he questioned other employees who were late but not in complainant's presence. The agency noted in her rebuttal, complainant reiterated her claims of discrimination, expressed her disagreement with management's stated reasons, but provided no additional substantive evidence in support of her claims. With regard to issue (a)(3), TL stated that complainant did not need internet access to perform the duties of her position and that no one who worked with her had internet access. TL stated that employees in Personnel Security needed internet access, as did the employees complainant named; however, it was not needed in the Pass Office. S1 stated he denied complainant internet access because she did not need it to perform the essential functions of her job. S1 stated that the employees named by complainant were not under his supervision but noted that those employees were granted internet access based on their job titles and duties. S2 and the Parking Manager corroborated TL and S1's statements. The agency stated that complainant failed to show that the duties she was performing in the Video Center required her to have internet access or that her collateral tasks (FWP and the NNSY Disability Program) required she have internet access. The agency found complainant provided no evidence to rebut management's articulated reasons. With regard to issue (a)(4), S1 noted that despite the late notice complainant attended the September 7, 2001 meeting with the new Captain, and also attended the case study meeting. S1 stated that he did not know why complainant had not been informed of the meeting with the new Captain because he was on vacation during this time. S1 stated that he has held meetings with other employees in the organization that did not require complainant's presence. S1 asserted that complainant was not treated differently from other employees in the organization. Additionally, T1 stated that as team leader she was occasionally called to a meeting which did not require complainant's presence but stated she was not aware of any scheduled meetings of which complainant had not been informed. The agency found complainant failed to prove that she was intentionally excluded from meetings which she was required to attend. With regard to issue (a)(5), S1 denied that he threatened and/or warned complainant that she would be docked if she took lunch away from her workstation. S1 stated that although complainant and the other Pass Office clerks worked a straight eight-hour shift with no lunch period, he permitted them to take a break away from their workstations not to exceed 30 minutes. In her rebuttal, complainant denied that she was permitted to go out every day for 30 minutes. TL corroborated that S1 allowed complainant 30 minutes away from her workstation to go out to lunch. TL stated that in January 2002, she authorized complainant to go on an extended lunch for her birthday, and S1 approved it. Complainant admitted that she was not charged leave for her two-hour lunch that day. Complainant also admitted that she was permitted to take more than 30 minutes for lunch without being charged leave on July 9, 2001. The agency found complainant failed to show that management threatened or warned her against leaving her workstation for lunch. With regard to issue (b), S1 acknowledged that complainant was denied overtime for working in the Video Center. S1 maintained that when complainant's workday ended at 2:00 p.m., other personnel from the Pass Office assumed the Video Center duties, but not on overtime. S1 stated that there were occasions where the Pass Office fell behind for some unforseen reason, and a minimum of overtime was granted to two clerks to get caught up on the work. S1 did acknowledge that other employees were allowed to work overtime in the Video Center because complainant had created the need by being late or not showing up for work. S1 stated that the duties performed on overtime in the Video Center were showing the video and ensuring personnel had signed in and he maintained complainant could not perform those duties because she was not available. In rebuttal, complainant denied S1's assertions and contended that if her work was backlogged, she was not offered overtime to catch up on the work. TL asserted that if anyone worked overtime in the Video Center, they were also performing data input from the Pass Office, not just complainant's work. TL stated that complainant never requested overtime. The agency stated that because of complainant's medical condition, her duties were limited to showing the video and preparing a monthly report. The agency stated that only CW1, a White male, worked any overtime between January and April 2002, and those hours were for the same job order numbers as CW1's regular hours. With regard to issue (c), the agency stated that complainant's former parking space required that she go through a walkway where the gun vault was located when she entered the building. The agency noted that a cage was subsequently built for security reasons and only qualified weapons personnel were permitted to go through that walkway. As a result, the agency stated that it had to relocate complainant's parking space and assigned her the first space behind the staff parking area, which enabled her to exit her car, go up the ramp, and walk into the door to her office. The agency stated that there was less than a twenty-foot difference in the distance complainant had to walk after the relocation. The agency pointed out that complainant's union representative confirmed that space was within complainant's restrictions. S2 stated that complainant's former parking space was unauthorized. S2 noted that when complainant requested her former parking space, management, along with the Safety Office and complainant's union representative, compared the former and current spaces and determined that the former space was less accessible and less safe than her current space. In response, complainant stated that S2's reasons were false. She contended that her current parking space was inadequate and contained standing water, a metal grate over a water overflow, and a stone trash can holder that was over four and a half feet tall. She stated that because of a water drainage problem, her feet and crutch tip got wet. Complainant stated that she made numerous requests for a parking space closer to a door where there was a carpeted area, to keep her from slipping and falling. S2 explained that complainant's current parking space was more accessible because she only had to negotiate a small curb to a walk-through rate and a ramp that led right up to the Pass Office and her workspace. S2 stated that from her former space, complainant had to negotiate a curb and two small steps to get to the same place. S2 noted that all of the hallways in complainant's building were linoleum. He disagreed with complainant's assertion that she had to walk down a longer hallway from her current parking space. TL and S1 corroborated S2 with respect to the greater accessibility of complainant's current parking space. The agency concluded that complainant failed to prove that management refused to provide her a parking space as a reasonable accommodation. Finally, with regard to issue (d), the agency stated that complainant was charged AWOL on April 23, 2002, and April 25, 2002, for failure to notify her supervisor she was going to be late prior to her starting time of 6:00 a.m. S1 maintained that complainant had a history of tardiness even prior to his becoming her supervisor. He noted that S2 had counseled her on October 30, 2000, and again on February 7, 2001. S1 stated that he counseled complainant on August 28, 2001, in the presence of her union representative. S1 stated that he made complainant aware that her time would be docked for tardiness, and he stated he advised her to properly notify her supervisors in a timely manner when she had a problem getting to work. S1 explained that he did not dispute complainant had a flat tire on April 23, 2002; however, she failed to notify TL until 6:45 a.m. In rebuttal, complainant claimed that the counseling was a 60-day verbal warning that her time would be docked if she did not improve her tardiness. Complainant denied that she committed any infractions after she was counseled on August 28, 2001. S1 noted that he had previously charged complainant AWOL on six occasions from March 27, through August 16, 2001. He also explained that after the August 28, 2001 counseling, he charged complainant AWOL on September 18, and December 10, 2001. The agency noted that complainant offered no evidence to refute that she was AWOL on those dates or to show that she was charged AWOL because of her protected EEO activity. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Upon review, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. Further, 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 complainant's protected classes. Regarding the claim in issue (c) that complainant was denied a reasonable accommodation, we find that the agency has shown that complainant was reasonably accommodated by her parking space. Complainant has failed to show how the parking space was inadequate to accommodate her claimed disability. Furthermore, we do not address in this decision whether complainant is an individual with a disability. Accordingly, the agency's final decision finding no discrimination 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 July 29, 2005 __________________ Date 1The record reveals that complainant withdrew issue (a)(1) from consideration during her September 26, 2002 deposition.