0120113460
10-25-2012
Vera C. Lang, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Vera C. Lang,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113460
Hearing No. 420-2011-00054X
Agency No. 2003-0520-2010102844
DECISION
Complainant filed a timely appeal from the Agency's final order, dated June 1, 2011 concerning her equal employment opportunity (EEO) complaint. She alleged employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
Complainant worked as a Medical Support Assistant at the Agency's Mobile Outpatient Clinic facility in Mobile, Alabama. Complainant was responsible for providing administrative, clerical, and computer support for the Mobile Outpatient Clinic. She performed her work at the Clinic, within the patient care setting. Her position also required her to have personal contact with both clinical and administrative staff.
On July 19, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of her disability (PTSD, depression, and sleep disorder) when:
1. On March 29, 2010, she received a proposed disciplinary action;
2. On April 16, 2010, the Agency's Reasonable Accommodation Committee denied her request for indefinite leave without pay and the removal of the Administrative Officer, as a reasonable accommodation;
3. On April 27, 2010, the Agency failed to grant Complainant's Family and Medical Leave Act request and charged Complainant with Leave without Pay; and
4. On July 6, 2010, Complainant was issued a Last Chance Agreement.
The pertinent record shows that, on or around October 28, 2008, Complainant had a verbal dispute with the clinic's Administrative Officer. The dispute between Complainant and the Administrative Officer occurred after the Administrative Officer moved several items on Complainant's desk, without Complainant's permission. The dispute did not involve any profanity or threats. Complainant was not within the chain of command of the Administrative Officer, but the Administrative Officer's responsibilities extend throughout the clinic.
The record does not show that Complainant had ever stated that she was an individual with a disability prior to the October 2008 incident. Complainant claimed that, as a result of that single incident, she suffers from Post Traumatic Stress Disorder (PTSD), depression, and a sleeping disorder. Complainant acknowledges that the PTSD episodes are sporadic and person-specific. The episodes are only triggered when Complainant is in proximity with the Administrative Officer.
Complainant took extended leave and initially received benefits from the Department of Labor Office of Workers Compensation (OWCP). Following the disallowance of her work-related disability claim by OWCP, Complainant requested that the Agency grant her a reasonable accommodation in the form of indefinite leave without pay and a work setting that involved absolutely no contact with the Administrative Office. She sought the removal of the Administrative Officer.
The record shows that Complainant's first line supervisor offered Complainant the option to transfer to Biloxi, but Complainant elected to stay in Mobile. The record includes a notation by an Agency physician that an option for isolation might be arranged, but the statement of that same official acknowledged that he thought Complainant's claims against the Administrative Officer "were without substance." The record also shows that the Medical Center Director averred that, because there was no medical documentation of any limitation, he could not determine what accommodation might be available.
On January 28, 2010, Complainant's physician provided a letter in support of her request, but the physician did not identify any medical limitations that would prevent Complainant from performing her duties. On February 5, 2010, the Agency's Reasonable Accommodation Committee denied Complainant's request because of insufficient medical documentation. The record shows that the Committee has denied other employee's request for accommodation. Complainant averred that she did not know of any similarly situated employees without disabilities who received more favorable treatment.
On March 29, 2010, the Agency issued Complainant a proposed removal, charging Complainant with unauthorized absences from October 27, 2009 to March 5, 2010 and with the failure to follow proper leave request procedures. The removal was not effectuated, but the record shows that Complainant was continuously off-work (did not report for duty) from April 2009 to April, 2010.
On April 8, 2010, the Agency denied Complainant's request (for total isolation and the removal of the officer) as a reasonable accommodation. The Agency instead granted Complainant authorization to transfer to another location, but without the use of an assigned government vehicle, as Complainant was then requesting.
On April 22, 2010, Complainant returned to duty. The record does not show that the Agency charged Complainant with leave without pay on April 27, 2010, as alleged. The record does not show the issuance of any adverse personnel actions against Complainant.
On July 6, 2010, the Agency issued Complainant a Last Chance Agreement with regard to her unexcused absences. Complainant accepted the offer and signed the Last Chance Agreement on July 7, 2010.
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). Complainant timely requested a hearing. On March 7, 2011, the Agency filed a motion for a decision without a hearing. Complainant provided the Agency with notice of Complainant's objections, but Complainant's certificate of service does not show that Complainant provided the Administrative Judge with her objections. The record shows that the AJ's name and address were crossed out on the Complainant's certificate of service.
The AJ assigned to the case granted the Agency's motion and issued a decision without a hearing on April 25, 2011. The AJ assumed without finding that Complainant was an individual with a disability. The AJ found that there was no genuine dispute with respect to any material fact and no issues as to credibility that would warrant a hearing. The AJ also found that the record was appropriate for summary judgment disposition.
The AJ reasoned that the record is undisputed that the Agency's Reasonable Accommodation Committee did not grant Complainant's request for her preferred alternative and that management relied on the Reasonable Accommodation determination. The AJ also found that the evidence showed that the Agency engaged in an interactive process to address Complainant's need for a reasonable accommodation.
The AJ found that Complainant was not denied leave without pay on April 27, 2010, and that Complainant had not presented any evidence to contradict this fact.
Regarding the Last Chance Agreement, the AJ found that there was no evidence to prove that the Agency's proposed disciplinary action (removal for unauthorized absences) or the issuance of the Last Chance Agreement was because of Complainant's disability. The AJ further reasoned that Complainant had not presented any evidence that would show that she was treated differently than similarly situated employees with no known disabilities under similar circumstances. The AJ entered summary judgment.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she did provide adequate documentation to the reasonable accommodation committee. She also maintains that under FMLA, she was entitled to up to 12 weeks of annual leave, sick leave or leave without pay at her discretion and the Agency denied her this entitlement.
Complainant further argues that the AJ erred because the AJ failed to address whether her requested accommodation would pose an undue hardship. Specifically, she maintains that the Agency failed to demonstrate how her request for LWOP, or the removal of the Administrative Officer, would negatively impact the efficiency of the service.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
On appeal, Complainant contends that the AJ erred in entering summary judgment because Complainant disagrees with the judgment of the management officials that Complainant's request was insufficient because it was unsupported. In essence, Complainant contends that the Agency failed to articulate any real reason for denying Complainant the specific accommodation that she requested because the AJ did not require the Agency to prove undue hardship of her requested accommodation.
To prove her disability claim, as a threshold matter, Complainant must establish that she is a qualified individual with a disability. An impairment is substantially limiting when it prevents an individual from performing a major life activity. Consequently, Complainant must establish 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. In this case, Complainant acknowledges that her condition is person-specific and is triggered sporadically - when she encounters the Administrative Officer.
For purposes of our analysis, we assume without finding that Complainant is an individual with a disability. We note that the Agency assumed that Complainant was a qualified individual with a disability.
The record shows that the Agency engaged in the interactive process; and the Agency offered Complainant the opportunity for a reassignment to a different location. Complainant declined the offer, in part, because the Agency refused to provide her with the use of a government vehicle for travel to and from her home.
Upon review of the record, we agree with the AJ that the record is sufficient for summary disposition. We also find that there are no genuine disputes of material fact or credibility that would warrant a hearing on the issues before us. Complainant does not deny that the record includes the entirety of the medical documentation that was presented to the Agency in support of her request and that the documentation "speaks for itself." In this case, the documentation does not state that Complainant was unable to perform the functions of her job with or without accommodation. Rather, the physician recommended that Complainant be provided leave without pay and be totally isolated from the Administrative Officer until "the workplace problem was resolved".
Complainant does not dispute that the Agency provided her with other options. It is undisputed that the Agency determined her reasonable accommodation request to be insufficient to support the removal of the Administrative Officer or to permit Complainant to be on indefinite leave without pay. Moreover, the record does not show any evidence that shows that the Agency took actions because of Complainant's disability. Therefore, Complainant's claims fail. The AJ's decision not to hold a hearing was appropriate.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order.
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 tends 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
October 25, 2012
__________________
Date
2
0120113460
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113460