01A10575
06-14-2002
Margaret Wright, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Margaret Wright v. Department of the Treasury
01A10575
June 14, 2002
.
Margaret Wright,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 01A10575
Agency No. TD-97-4186TR
DECISION
Margaret Wright (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of unlawful 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 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 Tax Technician at the agency's Los Angeles District Office facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on April 25, 1997, alleging that she was discriminated against
on the bases of disability (multiple sclerosis, diabetes, stress/emotional
breakdown) and reprisal for prior EEO activity when:
(1) the agency initiated action to collect a salary overpayment in excess
of $15,000 due to complainant's receipt of 1,280 hours of �Continuation
of Pay� from June 10, 1996 - January 17, 1997;
the agency required her to submit medical documentation by February 24,
1997, to verify her continued incapacitation to return to work or face
removal action.<1>
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
requested that the agency issue a final decision.
In its FAD, the agency dismissed Issue 1, noting that because the agency
granted complainant's request for a waiver of the overpayment, this
issue was moot. Turning to Issue 2, the agency found that complainant
failed to show that she is a qualified individual with a disability.
In so finding, the agency noted that complainant failed to establish that
she has an impairment which substantially limits a major life activity,
or that she had a record or was regarded as having such an impairment.
The agency concluded that even assuming complainant was a qualified
individual with a disability, she failed to establish that she
was subjected to discrimination in that at least four non-disabled
employees were required to submit medical documentation during the
time in question. Finally, the agency noted that the agency provided
a legitimate non-discriminatory reason for its actions, namely, that
complainant had been absent for 7 months and had submitted no medical
documentation to substantiate her absences.
Complainant raises no contentions on appeal. The agency requests that
we affirm its FAD.
Although the agency eventually dismissed Issue 1 on procedural grounds,
it first conducted an investigation into this claim. Accordingly,
while we note that the agency may have improperly dismissed the issue
as moot, the investigative report provides sufficient information to
allow a decision on the merits of the issue. Applying the standards set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Prewitt
v. United States Postal Service, 662 F.2d 292, 310 (5th Cir. 1981);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission finds
that complainant failed to establish by a preponderance of the evidence
that she was subjected to discrimination or retaliation when the agency
initiated a collection action for salary overpayment. Agency officials
testified that complainant received the same information that other
employees received when there was a possible overpayment issue stemming
from a denial of an Office of Worker's Compensation claim. Complainant
offered no evidence to establish that the agency took any actions
involving the overpayment/collection situation due to her disability
or prior EEO activity. Although complainant contends that the agency
attempted to deprive her of information that would have allowed her to
rectify the overpayment/collection issue, the record establishes that
the agency made certain individuals available to complainant to answer
her questions. Accordingly, as there is no evidence that the agency's
actions were motivated by complainant's membership in a protected group,
we find that complainant failed to establish that she was subjected to
discrimination or retaliation in regard to Issue 1.
Furthermore, even assuming complainant is a qualified individual with a
disability, she failed to establish that the agency discriminated against
her or subjected her to retaliation when it asked that she submit medical
documentation to substantiate her continued absence. The record indicates
that at the time of this request, complainant had been absent for over
7 months. Commission guidance establishes that if an employee's request
for leave does not specify an exact or fairly specific return date or if
the employee needs continued leave beyond what was originally granted,
the agency may require the employee to provide periodic updates on her
condition and possible date of return. See EEOC Enforcement Guidance
on Disability-Related Inquiries and Medical Examinations of Employees
Under the Americans with Disabilities Act (ADA), EEOC Notice 915.002
(July 27, 2000), at question 16.<2>
Here, although complainant contends that she provided medical
documentation throughout her career at the agency when requesting
accommodations, the record establishes that when she began her period
of extended leave in June 1996, she did not provide the agency with
any information detailing when she would be able to return, nor
did she request a particular amount of leave. The agency was not,
therefore, violating the Rehabilitation Act when, after a 7 month
absence, it requested that complainant provide medical documentation
substantiating her absences and indicating a possible return date.
Furthermore, complainant failed to provide any evidence to indicate that
this request was motivated by her prior EEO activity, rather than the
agency's legitimate need to receive information concerning complainant's
ability to return to work in the future.
It appears from the record that complainant also intended to allege
that the agency's request for medical documentation substantiating
her continued absence caused her to resign because it informed her
that failure to provide the necessary documentation could lead to
her removal. Complainant alleged that this �forced resignation� was a
discriminatory action on the agency's part. A review of the letter in
question reveals that complainant was told that if she failed to provide
medical information substantiating her incapacitation from duty, the
agency would direct her to return to work on February 24, 1997 and that
if she did not do so, steps to initiate her removal would be proposed.
As noted above, the agency did not violate the Rehabilitation Act when
it asked complainant to provide medical documentation to substantiate
her continued absence from work. Nor does the fact that the agency
chose to explain the consequences of not providing this information
establish a violation of the Act. Complainant makes much of the fact
that the agency �threatened� to remove her before she had been absent
for one year, despite the fact that the agency's written policy allows
employees to remain in a non-pay status up to one year. We note, however,
that the agency merely informed complainant that her failure to provide
medical documentation substantiating her incapacitation for duty or, in
the alternative, return to work, would lead to the need to remove her.
There is nothing improper about the agency's action in this regard, as
an agency is permitted to request medical documentation from employees
in this situation and is not required to provide an accommodation,
such as leave, if an employee refuses to provide the relevant medical
documentation. See EEOC Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act (Reasonable
Accommodation Guidance), EEOC Notice No. 915.002 (March 1999), at question
6. Moreover, complainant failed to provide any evidence that the agency
informed her of this policy out of a discriminatory animus. The fact that
complainant chose to resign rather than provide the requested information,
does not render the agency's actions discriminatory.
As a final matter, we note that the agency also informed complainant that
employees could be separated from employment after a one year period in a
non-pay status and that if her employment situation remained unresolved
at the end that one year period (June 1997), the agency would commence
the steps necessary to begin the separation process. We remind the agency
that when dealing with a qualified individual with a disability the agency
is required to modify this type of �no fault� leave policy under which
employees are automatically terminated after they have been on leave for
a certain period of time, unless it can show that: (1) there is another
effective accommodation that would enable the person to perform the
essential functions of his/her position, or (2) granting additional leave
would cause an undue hardship. See Reasonable Accommodation Guidance,
at question 17. In the case at hand, complainant did not allege that
the agency denied her a reasonable accommodation by failing to modify its
leave policy. Nor is there any evidence that complainant requested or was
denied additional leave, or any other type of reasonable accommodation.
As noted above, complainant refused to provide medical documentation to
substantiate her continued absence and, instead, chose to resign.
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
June 14, 2002
Date
1 Complainant's complaint raised three
allegations, all of which were initially dismissed by the agency on
August 20, 1997. The Commission affirmed the dismissal of one issue,
but remanded the above issues for investigation. See Wright v. Department
of the Treasury, EEOC Appeal No. 01980009 (August 21, 1998).
2The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.