01a35377
11-18-2004
Carolyn S. Williams, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Carolyn S. Williams v. Department of Defense
01A35377
November 18, 2004
.
Carolyn S. Williams,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A35377
Agency Nos. JQ-01-077; JQ-01-110; JQ-02-030
Hearing No. 310-A2-5597X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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 order.
The record reveals that complainant, a Supply Clerk (Data Transcriber),
GS-2005-04, at the agency's Defense Distribution Center at Red River, in
Texarkana, Texas, filed formal EEO complaints, alleging that the agency
had discriminated against her on the bases of her race (African-American),
disability (shoulder injury and hernia), and in reprisal for prior EEO
activity when she was not placed in a Material Handler, WG-5, position.
Complainant also alleged that the agency discriminated against her on the
bases of her disability (cardiac malfunction and acute stress disorder)
and reprisal when: (1) she was denied a reasonable accommodation and was
placed in Absent without Leave (AWOL) status from July 6, 2001, until
her termination; and (2) she was removed from her position on December
14, 2001, for being Absent without Leave (AWOL) and for her failure to
properly request leave.
The record reflects that as the result of an on-the-job injury,
complainant provided the agency with documentation, dated June 21,
1999, stating that her medical restrictions consisted of no prolonged
standing or walking, no climbing stairs or ladders, no kneeling, bending,
stooping, twisting, simple grasping, no lifting more than five pounds
with the right hand, and no reaching above the shoulders. (Report of
Investigation, Agency No. JQ-01-077, page 45). By letter dated July
21, 1999, complainant's restrictions were reduced to a maximum lifting
weight of 10-20 pounds for up to a third of her workday, or a maximum
of 10 pounds for up to two thirds of her workday, with only occasional
twisting, bending, and squatting, standing for up to thirty minutes
with appropriate rest, walking 1-2 blocks, and climbing 1-2 flights
of stairs. (R.O.I., JQ-01-077, page 50). Following an audit of the
WG-4 Supply Clerk positions, four of complainant's co-workers were
upgraded to WG-5, Material Handler positions. Complainant and one
co-worker (CW1) were not upgraded, which the agency stated was because
they had medical restrictions which prohibited them from performing
the essential functions of the WG-5 position. The agency stated that
the WG-5 position requires that an employee �stand on hard surfaces
for extended periods of time...bend, stoop, and work in tiring and
sometimes uncomfortable positions� as well as lift up to sixty pounds.
(R.O.I. JQ-01-077, page 82). The record shows that CW1 was later taken
off of her restrictions and was placed in the position of Transportation
Clerk, GS-4. (Hearing Transcript, 211).
The record reflects that after an alleged confrontation with a supervisor,
complainant suffered a �cardiac malfunction� and was taken off work
indefinitely beginning January 29, 2001. (Hearing Transcript, 37-41).
Complainant then requested leave without pay (LWOP), and was granted a
medical leave of absence which was to expire on July 5, 2001. (R.O.I.,
JQ-01-110, 6-8). In support of her request for LWOP, complainant provided
the agency with medical documentation which stated that she was suffering
from high blood pressure and was incapacitated for duty due to job stress.
(R.O.I. JQ-01-110, Attachments 1-3). Upon request from the agency,
complainant provided additional medical documentation stating that she
has �signs of end organ damage from high blood pressure, fundoscopic
changes, signs of heart enlargement...[and] myocardial infarction,�
as well as depression, anxiety, and �trouble maintaining focus on task
assignments.� (R.O.I. JQ-01-110, Attachment 3). By letter, dated June
7, 2001, the agency informed complainant that the documentation she
submitted to support her leave was �not administratively acceptable� and
that she needed to provide additional documentation that �supports how
[her] medical condition affects [her] ability to perform [her] assigned
duties,� as well as additional information as to prognosis and duration
of her condition. Id. The record reflects that complainant submitted
additional information but was contacted again by the agency, by letter
dated July 19, 2001, stating that her leave had expired July 5, 2001.
The letter also stated that as complainant had not called to request
additional leave, despite being contacted by her supervisor, she had
been placed in AWOL status beginning July 6, 2001. Id. Complainant
was informed that if she was still unable to return to duty due to
medical reasons, she was required to contact the agency immediately
and provide medical documentation to support her continued absence, or
otherwise return to work on July 25, 2001. Id. The record reflects that
complainant did not contact the agency or report for duty as directed.
(Hearing Transcript, 152).
On September 25, 2001, the agency issued complainant a Notice of Proposed
Removal for failure to request leave in accordance with established
requirements, being AWOL, and failure to report for duty as directed.
(R.O.I., JQ-01-110, Attachment 5). Complainant responded by letter
dated October 15, 2001, stating that she was �seeking a permanent
medical accommodation performing clerical duties in another division.�
Id. The record reflects that complainant submitted further medical
documentation stating that she would be medically released to return to
full duty only when a position as Supply Clerk �in an environment in
which her current stressors are relieved or removed� was identified.
Id. The agency informed complainant that there were no vacant funded
clerical positions in any division to which she could be reassigned,
and on December 3, 2001, complainant was issued a Notice of Decision
- Removal. Id. (Hearing Transcript, 42-43).
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
With respect to complainant not being placed in a WG-5 Material Handler
position, the AJ found that assuming, arguendo, complainant established
a prima facie case of race, reprisal, and disability discrimination,
the agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, that complainant's restrictions prevented
her from performing the essential functions of the WG-5 position.
The AJ found, as to complainant's remaining claims, assuming, arguendo,
complainant established a prima facie case of reprisal and disability
discrimination, the agency nonetheless articulated legitimate,
nondiscriminatory reasons for its action. The AJ found that at the
hearing, the Division Chief (DC) testified that complainant failed to
properly request leave for the period she was out of work beginning July
6, 2001, and was therefore placed in AWOL status. (Hearing Transcript,
151-154). He additionally testified that he searched for a vacant
funded clerical position into which complainant could be placed, but
that there were none available that were commensurate with complainant's
medical restrictions. Id. at 199. The DC testified that as a result
of her failure to properly request leave, her failure to report to duty
as directed, and her having been in AWOL status since July 6, 2001, the
decision was made to remove complainant from the agency. Id. The AJ
concluded that complainant failed to establish, by a preponderance of
the evidence, that the agency's articulated reasons were a pretext for
discriminatory or retaliatory animus.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that with
respect to complainant being denied reasonable accommodation and
removed from her position, the AJ's findings of fact are supported by
substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We find that complainant failed to establish,
by a preponderance of the evidence, that her removal from the agency
was motivated by discriminatory or retaliatory animus, or that she was
unlawfully denied a reasonable accommodation.
The Commission also finds that with respect to complainant not being
placed in a Material Handler, WG-5, position, we concur with the
AJ's conclusion that complainant failed to show she was subjected
to unlawful race or reprisal discrimination. We additionally find
that as to disability discrimination, even assuming that complainant
is an individual with a disability, she has failed to show that she
is a "qualified" individual with a disability within the meaning of
29 C.F.R. � 1630.2(m). A "qualified individual with a disability"
is an individual with a disability who satisfies the requisite skill,
experience, education and other job related requirements of the employment
position such individual holds or desires, and who, with or without
reasonable accommodation, can perform the essential functions of the
position. 29 C.F.R. � 1630.2(m). To the extent that complainant contends
she should have been offered the Transportation Clerk, GS-4, we find that
the record reflects that the Transportation Clerk position held by CW1
required extensive standing and walking, as well as climbing in and out
of the backs of receiving trucks and �physically pull[ing] yourself up
into the truck[s].� (Hearing Transcript, 212-214; 220). Accordingly,
we conclude that complainant is not qualified for this position as her
medical restriction are not commensurate with the essential functions
of a Transportation Clerk.
Therefore, we discern no basis to disturb the AJ's decision. Therefore,
after a careful review of the record, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 18, 2004
__________________
Date