01a51192
08-11-2005
Dorothy M. Hinkamp, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Dorothy M. Hinkamp v. Department of the Army
01A51192
August 11, 2005
.
Dorothy M. Hinkamp,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A51192
Agency No. ARBRAGG03MAR0018
Hearing No. 140-2004-00165X
DECISION
Complainant filed a timely appeal from an agency's October 12, 2004
notice of final action 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., the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
Complainant, a Strategic Planning Analyst, NF-4, at Community Activity
Services and Business Center (CASBC), filed a formal complaint of
discrimination dated May 15, 2003, alleging that she was subjected to
discrimination on the bases of sex (female), race (Asian), disability,
and age (41) when: she was asked for medical documentation advising of
her status and condition; the Deputy Chief of CASBC issued her an Absent
Without Leave (AWOL) letter; she was not allowed to fill the Chief of
Marketing position upon her return to work; she was isolated physically
and emotionally as a result of her office assignment; her request for a
�work hardening program� was denied; her supervisor referred to her as
�retard� or �retardo�; and she was targeted with a Business Based Action
to dissolve her position. Following the completion of the investigation
of her complaint, complainant requested a hearing on the complaint
before an EEOC Administrative Judge (AJ). On September 28, 2004, the AJ
issued a decision without holding a hearing, finding no discrimination.
The agency's final action implemented the AJ's decision.
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). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. 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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review, the Commission finds that the grant of summary judgment
was appropriate, as no genuine dispute of material fact exists.
The AJ stated, assuming arguendo that complainant was a qualified
individual with a disability, that the agency has articulated legitimate
non-discriminatory reasons for its action. The record indicates that
complainant, previously, sustained a traumatic on-the-job injury (a
head injury) when she was hit by stage lighting in September 1999, which
resulted her taking two years of temporary disability leave. The record
also indicates that complainant was subsequently paid for temporary total
disability for that injury from October 7, 1999 through November 14, 2001.
The agency indicated that the requests for medical documentation and
updates on complainant's return to work status were in accord with
standard policies and procedures. Specifically, the agency stated
that during complainant's two years away from work, she was placed on
a Leave Without Pay (LWOP) status, not to exceed a one year limitation,
beginning on June 29, 2000. In the alleged letter dated September 24,
2001, the Deputy Chief of CASBC informed complainant that she had not
provided the appropriate medical documentation stating her reasons
for not returning to work nor had she requested an extension of her
LWOP status after the one year limitation had ended. The Deputy Chief
stated that it was for the foregoing reasons complainant was placed on
the alleged AWOL status until she reported for duty. In response to the
Deputy Chief's foregoing letter, complainant's physician issued a note
that she could return to work on October 30, 2001, with the following
restrictions: no lifting over 5 pounds; must not work more than 8 hours
per day; must take regularly scheduled breaks; and must be able to leave
work for ongoing therapy/evaluation for indeterminate period of time.
Complainant returned to work on November 15, 2001.
The agency stated that in an effort to accommodate complainant's
limitations, she was placed in the Strategic Analyst position which did
not require working long hours or lifting any object in violation of
her limitation; and, this position provided for more stable hours where
she was able to take breaks as directed by her doctor. The agency also
stated that the Chief of Marketing position, to which complainant wished
to return, involved nights, weekends, and long hours and lifting and
moving things in order to set up publicity boards. The agency indicated
that complainant retained her salary and benefits. The agency also
indicated that complainant never once made her supervisors aware of
her continuing struggles due to her disability or of her inability to
perform certain functions required by the position.
The agency stated that complainant was not isolated in the new position,
rather she was co-located with her supervisor; the downstairs area where
she and her supervisor were located was more conductive to the work that
they performed; she was not refrain from attending meetings, she did,
in fact, attend senior management board meetings in the absence of her
supervisor and she attended staff meetings; she was very active in her
position after returning to work and received outstanding performance
appraisals for her contributions to the strategic planning unit;
she was not denied participation in the �work hardening program�
but rather she was told that she needed to return to work until her
medical records showed she was physically capable of doing her job;
her supervisor admitted to using the word �retard� in general, at
times, as a terms of endearment with all of her coworkers, but did not
specifically recall using the word in referring directly to complainant;
the supervisor also stated that she probably called other employees as
such because of the kind of relationship she had with them and it would
have helped if complainant had asked her not to call her that because she
would have made an effort not to say it; complainant was not personally
targeted for a Business Based Action proposal to dissolve her position;
had complainant's position been dissolved due to budget constraints
she would have been reassigned to another funded position; and, the
Business Based Action proposal was a directive issued by headquarters
that considered dissolving a number of positions across the agency
to realign the budget, but no action was ever taken on the proposal.
Finally, the agency stated that every reasonable effort was taken
to ensure that complainant's transition back into the workplace was
coordinated and satisfied the restrictions imposed by her physician.
After a review of all of the evidence in the record, the AJ determined
that complainant failed to show by a preponderance of the evidence that
the agency's proffered reasons were pretextual. Accordingly, after a
review of the record in its entirety, including consideration of all
statements submitted on appeal, the agency's final action is hereby
AFFIRMED because the AJ's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.<1>
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
August 11, 2005
__________________
Date
1The Commission does not address in this
decision whether complainant is a qualified individual with a disability.