01a42734
07-28-2005
Marjory T. Wagner, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Bureau of Prisons), Agency.
Marjorie T. Wagner v. Department of Justice
01A42734
July 28, 2005
.
Marjory T. Wagner,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
(Bureau of Prisons),
Agency.
Appeal No. 01A42734
Agency No. P-97-9292
Hearing No. 100-98-7881X
DECISION
Complainant timely initiated an appeal on March 4, 2004, from a final
agency decision (FAD) dated October 13, 1999 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.<1>
During the relevant time, complainant was employed as a Contract
Specialist, GS-1102-12, at the agency's Construction Contracting
Section (CCS) of the Procurement and Property Branch in Washington, D.C.
Believing that she was discriminated against on the bases of sex (female),
disability (degenerative spine disease), and age (43), complainant
contacted the EEO office on April 30, 1997. Informal efforts to resolve
complainant's concerns were unsuccessful.
On November 5, 1997, complainant filed a formal complaint. Therein,
complainant raised the following claims:
(1) her January 2, 1997 and May 12, 1997 requests for working at home
as reasonable accommodation for her disability were denied; and
(2) on May 23, 1996, she learned that she was not selected for the
position of Assistant Chief of National Contracts and Policy Section
(Supervisory Contract Specialist, Announcement #96-CO-038).
The record reflects that as a Contract Specialist, complainant was
responsible for the negotiation, administration and termination
of contracts for the Bureau of Prisons accelerated construction and
renovation program. The record further reflects that complainant's work
was performed primarily in an office setting with occasional visits to
contractor facilities and government field activities.
On May 15, 1998, the agency issued a partial dismissal of the
instant formal complaint. Therein, the agency accepted claim (1) for
investigation. The agency dismissed claim (2) pursuant to 29 C.F.R. �
1614.107(a)(2), on the grounds of untimely EEO Counselor contact.
Regarding claim (2), the agency found that the alleged discriminatory
event occurred on May 23, 1996, but that complainant did not initiate EEO
contact until April 30, 1997, beyond the forty-five-day limitation period.
At the conclusion of the investigation of claim (1), complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The agency thereafter filed a motion
for summary judgment or in the alternative, a Motion for Findings and
Conclusions Without a Hearing (Motion).<2>
On August 9, 1999, the AJ issued a Recommended Decision, granting the
agency's motion. The AJ concluded, without elaboration, that a decision
without a hearing was appropriate as there were no genuine issues of
material fact.
On October 13, 1999, the agency issued a FAD, finding no discrimination.
Claim (1): Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. See 29 C.F.R. �
1630.9. The employee must show a nexus between the disabling condition
and the requested accommodation. See Hampton v. United States Postal
Service, EEOC Appeal No. 01986308 (July 31, 2002).
For the purposes of analysis, we assume arguendo, and without so finding,
that complainant established that she is a qualified individual with
a disability. We further find that the agency did not fail to provide
complainant with a reasonable accommodation.
The Commission determines that the agency properly denied complainant's
request for Flexiplace arrangements. Specifically, the Acting Chief of
the CCS, who was the deciding official regarding complainant's January 2,
1997 reasonable accommodation request, stated that complainant requested
to be allowed to participate in flexiplace by changing her duty station
to a home she owned in Cooperstown, New York; and a flexible work
schedule and job structuring in order for her to continue her work
as a Contract Specialist. Specifically, the Acting Chief stated that
complainant claimed that she was having difficulties reporting to work
because her personal residence in the Washington, DC area did not have the
appropriate accommodations to allow her to deal with her disabilities;
that she unsuccessfully sought appropriate accessible housing in the
metropolitan Washington D.C. area; and that because she owned a home in
New York, she could "make changes to the structure to adapt to her needs."
The Acting Chief stated that after consultation with the Assistant
Personnel Officer (Officer) and the Executive Assistant to the General
Counsel concerning complainant's January 2, 1997 request, he was
notified that complainant's request did not satisfy the requirements
for a reasonable accommodation "because the difficulties [complainant]
cited as a barrier to her working involved problems in her home rather
than any office impediments." The Acting Chief stated that based on
the information he received from the Officer and Executive Assistant,
he denied complainant's request.
Further, the Acting Chief stated that he received a second request
from complainant, dated May 12, 1997, asking for participation in a
Flexiplace Program, by moving her office functions to her New York
home. The Acting Chief stated that although complainant considered her
second request as a reasonable accommodation request, he considered the
implications if she were to be moved to her New York home. The Acting
Chief stated that he identified a number of "significant problems"
with complainant's request. Specifically, the Acting Chief stated that
because complainant would be assigned the oversight of a number of
complex projects, these projects would require complainant "to make
an increasing number of site visits.� The Acting Chief stated that
"travel from smaller airports near Cooperstown to these sites would have
been costly and more difficult than going from the large Washington
metropolitan airports which have more flights and greater services."
The Acting Chief stated that complainant would not be able to perform
all of her duties by telephone and facsimile, and that staff members
would need to meet with her "at least some of the time." The Acting
Chief stated that the agency would have to either pay for complainant
to come into the Washington office or for staff members to visit her in
New York. Furthermore, the Acting Chief stated that on June 27, 1997,
he issued complainant a memorandum denying her request after considering
the above referenced factors.
The record reflects that complainant's Supervisor stated that while
complainant's reasonable accommodation requests were denied, she was
granted flextime so she could attend a class to learn to drive a vehicle
using hand controls and attend physical therapy twice a week.
We note that in her January 2, 1997 Request for Participation in
Flexiplace as part of the DOJ Worklife Program, complainant stated that
the continuance of her knee problems and "the deterioration of the disks
in my lower back have resulted in increased pain, and physical impairment
affecting neurological, musculoskeletal, genitourinary, and hemic systems,
which has substantially limited many of my major life activities."
Complainant further stated that while she lived on a fourth-floor
apartment building, "accessibility for major life activities has become
a serious problem." Complainant further stated that she searched for
accessible housing in the metropolitan Washington, D.C. within her
price range, to no avail. Complainant stated that her home in New York
"is a single story home, with many features that are already disabled
accessible and can be easily retrofitted for other accessible needs."
Complainant stated that her New York home was accessible to local
hospital/physical therapy facilities within her financial capabilities.
The record also reflects that the Officer stated that he was contacted
by the Acting Chief concerning complainant's reasonable accommodation
requests. The Officer further stated that after contacting the Executive
Assistant to the General Counsel, he was informed that complainant's
requests did not satisfy the standards for a reasonable accommodation.
Specifically, the Officer stated that the Executive Assistant found
complainant's requests focused on the work impediments she was
experiencing at home. The Officer stated that complainant's work
impediments "did not prevent her from performing her duties when she
arrived at the office."
Further, the Officer stated that although complainant's reasonable
accommodation request did not qualify but that it could be considered
under the Flexiplace Program. The Officer stated that he then
contacted the Acting Chief and informed him that he could consider
allowing complainant to work at home in New York under the Flexiplace
Program without making a determination whether she needed a reasonable
accommodation. The Officer stated that he and the Acting Chief reviewed
the considerations whether complainant's participation in the Flexiplace
Program "would (1) damage office productivity; (2) adversely effect
services to customers; and (3) cause the Agency to incur large additional
costs." The Officer stated that after reviewing the consideration,
the Acting Chief determined that the Flexiplace Program would not work
well with complainant because her requested New York location would be
"highly inconvenient." Furthermore, the Officer stated that there would
be no way for complainant "to participate in even a limited number of
meetings without the agency having to expend considerable cost for her
transportation."
The record reflects that the Executive Assistant to the General Counsel
stated that she was contacted by the Officer concerning complainant's
requests that she be reasonably accommodated by being allowed to work
at her home in New York. The Executive Assistant further stated that
because complainant's request did not involve a workplace accommodation,
she advised the Assistant Personnel Officer that it did not meet the
standards for a request that the agency should grant. Specifically, the
Executive Assistant stated that in her affidavit, complainant detailed
the difficulties she experienced within her home environment and how
it was difficult for her to physically report to work. The Executive
Assistant stated that complainant also complained about how costly it
would be to change her home environment to accommodate her condition.
The Executive Assistant stated that she also advised the Assistant
Personnel Officer that if complainant were to work out of such a remote
environment, it would be costly to the agency "if she were, for example,
to attend meetings."
Claim (1): Disparate Treatment
Complainant also claimed that the agency discriminated against her on
the bases of age and sex when it denied her permission to work from her
home in New York. In its final decision of October 13, 1999, the agency
noted that an agency official stated that most Bureau of Prison employees
allowed to work from home pursuant to the Flexiplace Program were either
women who had just given birth, and who had to care for newborn babies;
or were employees recovering from surgery. The agency further noted that
the agency official stated that one male employee with a �life threatening
condition� was permitted to work from home four days per week; that he
came into the office one day per week; that this arrangement was on a
�limited basis;� and that the employee eventually retired. The agency
noted that, unlike complainant, the male employee was within commuting
distance, and that he physically reported to work one day each week, so
that his situation was materially different from complainant. Finally,
the agency found that the record does not support a determination that
the Bureau of Prisons permitted men younger than complainant to work at
home because of sex and age.
After a careful review of the record, the Commission AFFIRMS the agency's
final decision finding no discrimination regarding claim (1).
Claim (2)
Complainant claimed that she was discriminated against when on May 23,
1996, she learned that she was not selected for the position of Assistant
Chief of National Contracts and Policy Section (Supervisory Contract
Specialist, Announcement #96-CO-038). In a partial dismissal dated
May 15, 1998, the agency dismissed claim (2) pursuant to 29 C.F.R. �
1614.107(a)(2), on the grounds of untimely EEO Counselor contact.
A review of the record reveals that the alleged discriminatory
event occurred on May 23, 1996, but that complainant did not initiate
contact with an EEO Counselor until April 30, 1997, which is beyond the
forty-five-day limitation period. On appeal, complainant presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Therefore, we find that
the agency properly dismissed claim (2) for untimely Counselor contact.
Accordingly, we AFFIRM the agency's dismissal of claim (2) on the grounds
of untimely EEO Counselor contact.
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
July 28, 2005
__________________
Date
1The Commission recognizes that there is
a passage of approximately four and one-half years from the date of
issuance of the final agency decision, and the date of the instant appeal.
On appeal, complainant states that the final agency decision was mailed
to her on October 18, 1999, via registered mail �where it was apparently
signed for by my child. I never received it.� (emphasis in original).
Because the agency has not provided any material establishing the date
that complainant received its final decision, the Commission presumes
that the appeal was filed within thirty days of complainant's receipt
of the final decision.
2The record contains no copy of the agency's May 18, 1999 motion for a
summary judgment.