2010-05-11 EEOC AJ bench decision involving harassment and non renewal of 2 year term

19 Pages·2012·10.8 MB·English

UNITED STATES
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
INDIANAPOLIS DISTRICT OFFICE

(NANCYE WIITAKER) )
>
‘Complainant, > BCC NO
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¥ 3 AGENCY NO.
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‘SECRETARY, UNITED STATI ) DAVID. TREETER
DEPARTMENT OF ADMINISTRATIVE JUDGE
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ns)
DECISION AND ORDER ENTERING JUDGMENTI
1. Introduction and Statement of Legal Claim
‘his complsint is brought under Tithe VLE ofthe Civil Rights Act of 1964 (Titie VI, as
amended, 42 US.C. § 2000 of so. and Section 501 of he Rehabilitation Act of 1973, 05
amended, 29 U.S.C. § 791 ot.geg, This DECISION is issued pursuant to the regulations
govemting discrimination complaints fled by federal employeos. 29 CPR. §1614.109
Onorabout August 17,2007, the Compsin2nt I 3.
(Complaint of Employment Discrimination withthe Ayency. On November 23,2007, the
Agency acceptei EEEEED complaint, and an investigation ensied, On or about July 8, 2008,
BRIBE ousted howring boforo an Administrative Judge ofthe Equal Employment
Oppertmity Commission. ‘The Agency did not dismiss any claims prior to the request fora
Hearing

An administrative hearing was held in this mater orf od ressing the

1 Ibis noted that this written decision is issued following the rendering of a beach decision on
April 15, 2010. ‘the transcript of the bench decision was edited for spelling, punctuation,
patagraphing, and addition of appropriate legal citations,
following claims
‘A. Did the United States Department of Defense discriminate
Ue i
work envronment?
B, Die United States Department of Defense discriminate ons ED
Jon bases of her race and disability when it did nol extend her temporary
appomtncat forth: 2007-2008 school year?
‘The Bqoal Employment Opportunity Commission hereby submits ft analysand
conclusions regarding the challenged clans
LL Analysis
An analysis ofthis mtr requires a o-step inquiry. Fis the legal standards
governing a case of employment disciminaton must be adresse. Second the governing legal
stundards must be applicd tothe facts ofthe instant case so that t may be ascertained whether the
Complainant was the vsti of unlavful employment discrimination,
Ac Governing Legal Standards
Disabilty Coverage
Under al theorcs of isbilty discrimination brought under the Rehabilitation Ac, he

(Complainant bears the threshold evidentiary burden of coming forward with eredible evidence as

part of her prima fase showing thet: (1) the Complainant isan individual with a disability";
and (2) the Compainanl is “qualified individual with a disability." Simpy state, as pat of
ber threshold burden, the Complsinant mast demonstrate that she is a member ofthe class of
employees who ae protected by the Rehabilitation Acts prohibition agninstemploymat
Atseriination.

1m analyzing a disparate toatment elim under the Rehabilitation Act, where the agency

denies that its decisions were motivated by a complainants disability, and thete ig no direct
evidence of discrimination, the Commission applies the burden-shifliny method of proof set forth
in MeDonnell-Douglus Comeration v, Green, 411 US. 792 (1973). Heyman v. Queens Villa
Comm. for Mental Health for Jamaica Cry, Adolescent Program, 198 F.34 68 (2d Cir. 1999):

Swanks v. WMATA, 179 F.3d 929, 923-34 (D.C.Cir. 1999).

‘Under this analysis, in order to establish a prima facie case, a complainant must
demonstrate that: (1) she is an "individual with e dissbility;* (2) she is "qualified" for the
poriton held or desired (3) she was subject to an adverse employment ation: and () the
cireunssanes surrounding the adverse action give rise to an inference of discrimination,
Lawson v. CS Transportation, bu, 245 F.3d 916 (7th Cie. 2001). The hurden of production
then shits tothe Agenay to articulate legitimate, non discriminatory reason forth adverse
employment action. Tn order to satis her burden of proof, a complainant must then
demonstrat, by a preponderance of the evidence, tat the agency’ proffered reason is a pretext
for disability discrimination, Id

‘Asan intial mater, in order to establish apm faci ease of disability-base
discrimination under the Rehabifration Act, a complainant must demonstrate that she is an
“individual with a disability” within the meaning of the Act. “An “individual with a disability" is
ono who: (1) has a physical or mental imprimmcat tht substatially lis one or more aaj ite
activities; (2) has a record of such impairment; or, (3) is regarded as having such an impairment.
‘See 29 CFR. § 1630.2(z).

‘This dctermination “proceeds in thece steps: (1) identifying a hysicat or mental
impairment; (2) deciding whether a ite activity affected by the impairment i "anor life
activity" and, (2) determining “whether the impairment cubstantally fits the snjor ite

activity.” Bragdon v. Abbott, 524 U.S, 624, 631 (1998); Lawson v, CSX Transportation, Ine.,
245 F.3d 913 (7" Cir. 2001).

“Major life activities include, but are not limited to, “functions such as caring for oneself,
porforminys manual tasks, walking, seeing, heaving, speaking, breathing, learning, aud working.”
‘See29 CER. § 1630.2), The Interpretive Guidance to these Regulations further specifies that
“other major life activities include, bul are nol limited to, silting, standing, lifting, and reaching.”

See 29 CER. Part 1630 Appendix § 1630.2().

Generally, “substantially limiting” means; “unable to perform a major Life activity that
the average person inthe yenerl population can perform: o,sgnifleantly restricted as tothe
condition, manner, ot duration under which an individual ean perform a purtcular major life
setivty as compared tothe condition, manner, or duration under which the average petmon in the
‘general population ean perform thal same major if atviy.” Sev 29 CER. § 1630.26(1)

1u deteunining whether 8 complainant is substantially limited in a major fife activity, the
‘Commission must consider the nature and severity of the impairment, the duration or expected

duration of the impairment, and the permanent or long-term impact resulting from the

impairment, See 29 CER. § 1630.2()(2). An impairment is substantially limit

wif it Insts for
‘more than Several months and significantly restricts the performance of one or more major life
activities during that time. See EEOC Enforcement Guidance on the Americans With
Disabilities Act and Psychiatric Disabilities (March 25, 1997) (Guidance). In addition, some
conditions may be long-lcrm, or polentilly long-term, in tha their duration is indefinite and
unknowable, oris expectod fo be at Teast several months, Such conditions if severe, may
constitute dissblltics. Sze Guidanco, at question 7

Additionally, the effects of any “[mitigating] measures—both positive and negative--must

Do taken into account when judging whether that person is ‘substantially limited.” Sutton x,
United Aislines, 527 U.S, 471, 482 (1999); Afbertsons, Inc, v. Kirkinburg, $27 U.S, $55, 565-

566 (1999); Murphy v. Uited Parcel Servies, 527 US. $16, 521-523 (1999). Moreover, an

individualized assessment “is particularly necessary when the impairment is one whose

sympanms vary widely from person to person.” See Toyots Motor Mfu., Ky, Inc. v. Williams,

S34 U.S, 184,195 (2002).

Even having established that she isan individual witha disability, a complainant must
sell show that sho s a “qualified” individual with u disability within the meaning of 29 CER. §
1630.2(m). A “qualifcd” individual witha disability is one who satisics the requisite sil,
experience, education and other jo related requirements of the employment position such
individual holds or desiees, and who, with or without easonable accommodation, can perfeom
the essontil functions of the position, See29 CR. § 1630.2(m); see also 29 CPR. § 16303
(excepts to definition

An individyal is "regarded! ay” having an impairment, if she: (1) has a physical or mental
impairment thal does not substantially limit major Ife uetiviies, but is treated by an agency as
having such 2 Timitation; (2) has physical or mental enpainment tha substantially Smits major
life activites only a a result ofthe atiudes of others toward sch impairment; a, (3) does not
‘pave a physical or mental impaismen, but i eated by an agency as having a substantially
limiting impairment. De-La Garza v, U.S Postal Service, EEOC Appeal No. 01995346
‘eptember 26, 2002) (vting 29 CER, § 1630.200(1).

2 Disparate Treatment Law

In the absence of direct evidence of diseriminaton, a elsim alleging disparate weatraent is

cexaminod under the three-part test st forth in MeDomnetl-Douglas. Under this analysis, a

‘complainant initially must establish a prima facie case of disccimination by presenting facts that,
if unexplained, reasouably give rise to an inftrence of discrimination. St Mars Honor Centr. v
Hicks, 09 U.S. S02, 507 (1993); Texas Department of Community Affairs v, Burding, 450 US.
248, 252-53 (1981); MeDonnell-Douglas, 411 US, at 802, The burden then shifts to the agency
to aticulate a Tegitimate, nondisriminatory reason forthe challenged actions. Burin, 450 US.
at 253-54: MeDomnell-Douslas, 41 U.S. at 802. Ullimatoly,« complainant must prove, hy a
‘preponderance ofthe evidence, thatthe agency's articulated reason for its actions was not its tue
reason, buta sham or prtext for unlawful discrimination. Reaves v, Sandorson Plumbing

Products, ine, 530 U.S, 133, 143 2000); Hicks, 509 U.S. at S11; Burdine, 450 U.S. al 252-53;

MeDonnell-Douglas, 411 U.S. at 804.

In he ease at har, the Complainant can establish a prims fueie caso of diserimination by
showing that: (1) she is a member of protected class; (2) she was qualified forthe position at
issue; (3) she was not extended in her appointment; and, (4) an individuat outside of hor

protected class was treated more favorably. Lucas v. Department of the Army, EEOC Appeal

No, 01443607 (March 30, 2005); Williams v. Department of Education, EEOC Request No.
(05970561 (August 6, 1998); Enforcement Guidance on O'Connor v, Consolidated Coin Caterers

Curp, EEOC Notice No. 915.002 (September 18, 1996),
Pretext can be demonstrated by "showing such weaknesses, implausbiities,

inconsistencies, incoherencies, or contradictions in the [agency's] proffe

od legitimate reasons for
its action that a reasonable fact-finder could rationally find them unvrorthy of credence.”

Dalesandro v, U.S. Postal Service, EEOC Appeal No. 01,A50250 (January 30, 2006) (citing

Morgan y. Hilti Ine., 108 F.3d 1319, 1323 (10th Cir. 1997),

3. Ho

Environment Law

Tn order to establish claim of harassmcnt duo to a hostile work environment, &
complainant must show that: (1) she isa member of a statutorily protected class; (2) she was
subjected to unwelcome conduct (3) the harasimoent vomplained of was bused on her protected
class; (4) the harassment had the purpose or effect of unreasonably interfering with her work
performance zadior creating an intimidating, hostile, or offensive work environment; and (5)
there ia a basis for impnting lability to the employer. Staib v. Social Security Administration,
EEOC Appeal No, 01422011 (Seplember 26, 2003).

‘The harasser'seenduet shouldbe evaluated from the objective viewpoint of rensunable

person in the victim's circumstances, Hartis v. Forklift Systems, Inc., $10 U.S. 17 (1993);

Enforcement Guidanes on Harris v, Forklift Systems, Ine, EEOC Notice No, 915.002 (Mach 8,
1994) (Guidarice). In assessing allegations of harassment, the Commission examines factors
such asthe frequeucy of the alleged discriminatory conduc, its severity, whether it is physically
threatening o humiliating, and ifit unreasonably interferes with an employee's work
performance. Harris, 520 U.S. at 23; Guidance at 3,6. Usually, unless the conduct is pervasive
and severe, a single incident, or group of isolated incidents, will not be regarded as
Uiseriminatory harassment, Walker v, Ford Mofor Company, 684 F.2d 1355, 1358 (lth Cit.
1982). Moreover, the alleged harassing conduct must also be sufticiently continuous, not merely

{dered pervasive, Faragher v. City of Boca Raton, 524 US. 775, 736

episodio, in order to be cor

(1998). In Oncale-v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998), the Supreme

Court found that the emaployment discrimination laws enforced by the Commission are not to be
used asa "general civility code." Rather, they forbid “only behavior so objectively offensive as
te alter the conditions of the vietin’s employment.” Ki, On the other hand, itis well established

that an employer who creates or tolerates a work environment which is permeated with

“discriminatory intimidation, ridicule, and inaul,” thal “is sufficiently sovere or pervasive to alter
the conditions of the victim's employment and create an abusive working environment," is in

violation of the Commission's regulations. Meritor Savings Bank v, Vinson, 477 U.S. 57 (1986),

D. Findings of Fact and Conclusions of Law

The fits pertinent to this case are relatively sraighforward. UBB eczed from the
Army after serving over weary years of active duty, She has been csrtified by the United States
Departmont of Veterans Affairs as tity percent or more disahted, (HII race is Aican-
Ameriean,

Since 1994, the Agency has operated a domestic school system under ths name
{Department of Defense Domestic Dependeal Elemeniary and Secondary School) (Whitakes)
began her employment with the Departs in as « Training Insinictor on an Execpted
Service NTE appointment to run from June 22, 2005 to Sune 15,2006,

Daring be tin that Serve an NTE appointment at Port Campbell he
Community Superintendent was QED as sponsible For overseeing the
operation ofthe schools, oes :( TID i: Principe

ED EEE cond vel sperisor yD The Assistut Principal of

BB ED: fice level supervisor yD
During the first half of the 2005-2006 school yar, QE elocted QIEEIEEBon art x

needed basis to perform duties as a substitute special etucation teacher aif) Tn mid-term of
the 2005-2006 school year, a fulltime special education teacher vacancy opened i)
received wlist of eandidaes forthe positon, snd, I sh ized No 11
it At chat point QI was converted wo the position of Teacher for Severely
Invpairel/Muhiple Disability students on m Exeepled Service NYE Appoincmeut to expire un

August 1, 2006.
SEB performance curing the period TIN vas generally
900, QED acicated tht NIB a few problems bat nothing noteworthy, and
BID as ted filly successful onher appraisal. Asa esi, TT
extend IIIB ep pointment for onc year, to expire on July 29, 2007.

‘On May 18, 2007, Haller notified Whitaker tha the temporary appointment under which
she had been hired would be expiring and that the appointment would pot be exteuded. The
notice indicated that QM ast ay of wore would be the fin] day of classes forthe yoat,
May 25, 2007. The failure to extend: appointments the focus ofthe complaint inthis

Pefore addressing the facts and circumstances surounding ba! decision, the
Administrative Judge will address the matter of coverage under the Rehabilitation Act. For the
reasons discussod herein, the Administrative Judge finds that (ies not disubled within the
meaning ofthe Rehabilitation Aet und is, therefore not ened Lo the proteeion worded by the
statute

EE eseribcd one actual impaiement, back injury. QUEas an arte
condition in her back that prevents her from prolonged standing, walking with rest breaks, and
lifting greater than forty pounds, (UNMBicvcrdiseussed this condition or the Simitatious with
(RD GR ae the managers were not avvare that MEERiad such limitations. The
Adtinistrative Judge draws three conclusions from the facts and circumstances. First,
HEEB: evidence docs not deserbe w substantial limitation of a major life atvity, ovond,
(GB ed ERE wore not eware of the impairment or the limitations such that they could
‘rave taken adverse actions based upon thems; end thc ntact tho Hearing that

she was relying om a theory that the Agency regarded her as heing dissbled based on the medical
{cider 01 ETI cbondoning ker elsin of coverage under the frst prong.

GEIB, hoy is that the Agency, speeiicaly IED ond MINN regarded her as
disabled based upon two ineiden's cS 1 On hose 695s
1A go tothe base hospital. complaining of chest pains, ‘the hospital aleasod her within
4 few hours, and she returned to work citer the uoxt day or the following day.
indicted to the manogers that she had possible stressor anxiety and had to wear a heart monitor
fora few days. (EEE never indicalcd any dixynosis of a heart condition, and she nevor
indicated any need for an socommodation of her impairment

‘With regard to the medical incidents, NG <n ID cicved ss! I naa
sulfered some anxiety, nothing move, (QIMIMIBonakes much ofthe fact that sonteoue brought a
defibrillator to the classroom when it was reported that she had chest pains Infact, she insists
Chat it was llvho brought the modical device tothe classroom, a matter denied > D
‘The Administrative Judge finds that it does not matter who brought the device to the classroom,
nor is it significant to the analysis here that the defibrillator was brought into the classroom. At
the time ofthe incident, everyone invelvedin the mate, incline ED sd
EBB 6 etieve ar MMB enay have boon having a heart attack, Under the circumstances it
‘would have been suprising if someone had not brought the defibrillator othe scene. Nothing
can be read ita this. A mediesl emergency was oscurring, and everyone reacted in a predictable

Importantly, nothing happened afterward that would indicate ha 9
considered QUMIMMMro be disabled. they accepted the information provided 6
regarding her hospital visit and her subsequent monitoring, Neither made any statement that

‘would indicate they believed this was anything but what (NB said st was. In short,

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