0120091702
03-01-2010
Nancy H. Cady, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Nancy H. Cady,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120091702
Agency No. DOSF05907
DECISION
On March 5, 2009, complainant filed an appeal from the agency's February 6, 2009 final decision concerning her equal employment opportunity (EEO) complaint alleging 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 deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as a Realty Specialist at the agency's Office of Overseas Building Operations (OBO) in Arlington, Virginia. She was employed under a one year long Personal Service Contract which was eligible for renewal on March 17, 2007. On January 5, 2007, complainant became ill with an infection and requested sick leave. Her condition deteriorated and she was twice hospitalized due to a systemic infection and complications from kidney stone surgery. She did not return to work until April 2007. As a result of this general systemic infection, she became visually impaired. Specifically, she suffered scarring of her retinas and experienced cataracts. Due to retina damage, her ophthalmologist deemed her "legally blind" in late February 2007.
Complainant's supervisor was the Director of the Real Property Management Division. Although pursuant to the terms of her contract, he could have terminated the contract under which she was working because of her failure to provide proper documentation to support her absence from work, he did not do so. Instead, although she had not followed proper procedures, she was permitted to exhaust her paid leave and then take leave without pay until the end of her contract. However, in February 2007, he decided not to renew her contract.
In his affidavit testimony, complainant's supervisor attested that complainant's contract was not renewed because she had been absent from work for 43 days,1 27 of which were leave without pay without providing proper documentation regarding her absence and because she did not provide any medical documentation regarding her illness and prognosis as required under the terms of the contract; and that the "over riding" reason was her performance was "mediocre and marginal at best." He provided very specific detailed testimony describing complainant's performance deficiencies, but stated that before he could document them in an evaluation, she "did not come to work and claimed to be ill." The Director also stated that on several occasions, complainant would go to him or the timekeeper in tears requesting to leave work due to family problems. Although she was always permitted to leave, he described that behavior as "very disruptive." The supervisor also noted that the Managing Director had issued a new directive that all part-time contractors with personal service contracts be brought up to a forty hour work week and be willing to travel and work overseas under temporary duty hours for short periods of time. Complainant had previously declined to work a forty hour week due to family responsibilities.
On May 7, 2007, complainant filed a formal EEO complaint alleging that the decision not to renew her contract was motivated by unlawful disability discrimination. The agency accepted the complaint for investigation, and at the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that complainant failed to prove that she was subjected to discrimination as alleged. Although complainant filed this appeal, she did not submit a statement in support of it.
ANALYSIS and FINDINGS
In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies that its decisions were motivated by complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, in order to establish a prima facie case, complainant must demonstrate 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. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy her burden of proof, complainant must then demonstrate by a preponderance of the evidence that the agency's proffered reason is a pretext for disability discrimination. Id.
We assume arguendo that complainant established a prima facie case of disability discrimination. In its final decision, the agency stated that the reasons for not renewing the contract were based on complainant's poor work performance and the modifications made to the new position, including, eliminating part-time flexibility and requiring a forty hour work week. The burden shifts to complainant to prove, by a preponderance of the evidence, that these were not the real reasons for the agency's actions but that they were in fact a pretext for disability based discrimination.
As noted above, complainant is silent on appeal. Even though there is no documentary evidence in the record concerning complainant's "mediocre and marginal" performance, she does not deny it, nor does she deny that she had previously communicated her inability to work a forty hour week. Instead, we presume that she is relying on her affidavit testimony gathered during the investigation wherein she claims that her supervisor told her that her contract was not being renewed for several reasons, including her impairments, a claim which her supervisor denies in his affidavit testimony.
Rather than attempting to make credibility determinations on affidavit testimony, the Commission looks to the objective documentary evidence in the record and concludes that the real reason for management's decision not to renew complainant's contract was quite simple. At the time a decision had to be made whether or not to renew her contract, complainant had been unavailable for work for several weeks and had failed to communicate if or when she would be available for work in the future. We find her unavailability for work to be a legitimate and nondiscriminatory reason for not renewing a contract and that there is no evidence in the record which supports a finding that it was a pretext for disability based discrimination. Finally, while we express no opinion as to whether, under the circumstances of this case, the Rehabilitation Act would require the agency to accommodate complainant, we find that she did not request reasonable accommodation prior to the agency's decision not to renew her contract.
CONCLUSION
For the reasons set forth above, we AFFIRM the final agency decision's conclusion that the evidence does not establish that the agency's actions violated the Rehabilitation Act.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 1, 2010
__________________
Date
1 The record also contains an email dated February 6, 2007, in which he stated that complainant's "health was questionable to the extent that we don't know when she will be able to work and even if her health will enable her to return to her job. All of this is unfortunate but I need to protect the interest of OBO and my division."
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0120091702
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013