01a11926
08-26-2002
Patsy A. Wright, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Army & Air Force Exchange Service (AAFES), Agency.
Patsy A. Wright v. Army and Air Force Exchange Service
01A11926
8/26/02
.
Patsy A. Wright,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Army & Air Force Exchange Service (AAFES),
Agency.
Appeal No. 01A11926
Agency No. 99-084
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Senior Store Associate at the agency's Little Rock, Arkansas Air
Force Base facility. As background, we note that complainant filed two
previous complaints on July 13, 1998, and September 3, 1998, before
filing the complaint at issue in the instant appeal. In her prior
complaints, complainant alleged, among other things, that the agency
denied her a religious accommodation and treated her differently than
similarly situated individuals when the agency failed to assign her a
Monday-Friday set schedule. Specifically, the record reveals complainant
desired Saturdays off in order to attend to her ministry commitments,
which required her to attend classes at her church on the first and
third Saturday of every month.
These issues were addressed first by a hearing before an EEOC
Administrative Judge, and then in our decision in Wright v. Dept. of
Defense, EEOC Appeal No. 01A10122 (March 19, 2002). In that decision,
we found that the agency articulated a legitimate, nondiscriminatory
reason for denying complainant's request for all Saturdays off, namely,
that Saturday was the busiest day of the week, and complainant's store
could not support complainant's absence on all Saturdays. However,
we further noted in that decision that complainant failed to establish
that she was denied a religious accommodation since the record revealed
complainant was permitted to have off the first and third Saturday of
each month in order to accommodate her religious beliefs. There is no
record that complainant sought reconsideration of our prior decision.
As for the complaint which is the subject of the instant appeal, the
record reveals complainant sought EEO counseling and subsequently filed
a formal complaint on April 5, 1999, alleging that she was discriminated
against on the bases of race (African-American), religion (Methodist),
disability (Depression), and reprisal for prior EEO activity when, on
or about January 1999, she was denied a set schedule, and was told that
her leave requests would be denied except for special circumstances.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, but then withdrew her request and requested
that the agency issue a final decision.
In its FAD, the agency concluded that complainant had been working on
a schedule that permitted her to have the first and third Saturdays of
every month off. On September 29, 1998, complainant submitted a request
from her physician requesting that complainant have "set hours that she
works, and set days off, if at all possible." The request states that
complainant suffers from Major Depression with anxiety, and explains
that a set schedule would help complainant adjust better to her work.
The agency found that in a September 30, 1998 meeting with complainant and
the Store Manager, and in response to complainant's physician's request,
complainant was presented with a set schedule that would allow her to work
every week from Tuesday to Saturday, from 9:00 a.m. until 5:30 at night.
The agency found that complainant declined the offer because it would
not allow her to have the first and third Saturdays off.
On January 21, 1999, complainant met with the General Manager, who offered
the set schedule again. During the meeting, complainant suggested that
she may accept the set schedule, but would also request annual leave on
Saturdays. Thereafter, the General manager informed complainant that
her annual leave request could not be accepted in advance without an
examination into the operations of the day, and would only be approved
in special circumstances.
The record reveals that complainant denied the agency's offer of a set
schedule. However, the record also reveals complainant has not worked for
the agency since January 21, 1999, when she went off work on sick leave.
As for complainant's request for an accommodation of her depression, the
agency found complainant failed to establish that she was an individual
with a disability since she failed to submit any medical documentation.
As for complainant's claim that she was informed that her leave requests
would be denied, the agency found that this allegation failed to state
a claim since complainant had not in fact been denied leave. Rather,
complainant was only advised of a proposed action. Finally, the agency
found complainant failed to establish that the denial of a set schedule
was discrimination or retaliation because complainant was in fact offered
a set schedule, which she declined. As for her claim that she was
denied a religious accommodation, the agency found that complainant was
in fact accommodated until she submitted her request from her physician.
Furthermore, the agency continued to permit complainant to have the first
and third Saturdays off from work as an accommodation when she declined
the agency's schedule proposal.
Neither the agency nor complainant make any contentions on appeal.
As for complainant's claim that she was denied a set schedule because of
her race and prior EEO activity, we find complainant failed to establish
a prima facie case of discrimination or retaliation. In that regard, we
find complainant failed to establish that she suffered an adverse action
since her request for a set schedule was in fact approved when she was
offered the Tuesday through Saturday schedule per her physician's request.
In examining complainant's claim that she was denied a set schedule as a
denial of a disability accommodation, we note that as a threshold matter
in a case of disability discrimination under a failure to accommodate
theory, the complainant must demonstrate that she is an "individual with
a disability." An "individual with a disability" under the Rehabilitation
Act, defined as one who: (1) has a physical or mental impairment that
substantially limits one or more of the major life activities of such
individual; (2) has a record of such impairment; or (3) is regarded
as having such an impairment. EEOC Regulation 29 C.F.R. � 1630.2(g).
We note that complainant submitted no documentary or testimonial evidence
discussing how her depression substantially limits a major life activity.
The only evidence on the subject in the record is from her physician
where he states that complainant suffers from depression and anxiety,
and would benefit from a set schedule.
Assuming, arguendo, that complainant is an individual with a disability,
we find that she failed to establish that she was denied a reasonable
accommodation of her disability. Specifically, there is no dispute that
complainant was offered a set schedule in response to her physician's
request in September 1998. However, complainant declined the offer
because it would not enable her to have every Saturday off, or in other
words, have a Monday-Friday schedule. Complainant's claim that she was
denied a set schedule of Monday-Friday was the subject of our prior
appeal in Wright v. Department of Defense, EEOC Appeal No. 01A10122
(March 19, 2002). As noted above, that decision found complainant
failed to establish she was discriminated against when she was denied
a Monday-Friday schedule.
We do note, however, that the agency was not relieved of its obligation to
provide complainant with a religious accommodation absent undue hardship
when it provided her with a disability accommodation. However, in this
case, complainant failed to accept the agency's disability accommodation,
and failed to properly request annual leave as a religious accommodation.
In that regard, we agree with the agency's finding that complainant's
allegation that she was advised her annual leave requests as a
religious accommodation would be denied fails to state a claim.
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that an agency
shall dismiss a complaint that alleges that a proposal to take a
personnel action, or other preliminary step to take a personnel action,
is discriminatory. The Commission has held that proposed actions do not
create a direct and personal deprivation which would make a complainant an
"aggrieved" employee within the meaning of EEOC Regulations. See Charles
v. Department of the Treasury, EEOC Request No. 05910190 (February 25,
1991); Lewis v. Department of the Interior, EEOC Request No. 05910190
(February 25, 1991). Since the agency never in fact denied her annual
leave, complainant cannot establish that she was an aggrieved employee.
Indeed, complainant admits that she was informed in a January 1999 meeting
that her annual leave request would be approved for special circumstances.
However, complainant went out on sick leave and has not been back to
work since the meeting.
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 FAD.
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
8/26/02
Date