01966040
03-04-1999
Antonia Pruneda, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Antonia Pruneda v. Department of the Interior
01966040
March 4, 1999
Antonia Pruneda, )
Appellant, )
)
v. ) Appeal No. 01966040
) Agency No. FWS-93-009
Bruce Babbitt, ) Hearing No. 320-95-8340X
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
her allegation that the agency violated the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq., and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUES PRESENTED
The issues presented herein are whether appellant has established that
the agency discriminated against her based on physical disability (knee
injury) and mental disability (anxiety) when: (1) it allegedly failed
to reasonably accommodate her in a number of areas; and (2) she lost 61
hours of annual leave, 22 hours of sick leave, and 591 hours of leave
without pay due to incorrect reporting of information by her supervisor;
and whether the agency discriminated against her based on age (58) when:
(3) her supervisor made what appeared to be an age-related inquiry to
her psychiatrist.
BACKGROUND
During the period in question, appellant was employed as a GS-4
Automation Clerk. Appellant filed a formal complaint in November 1992
in which she raised what have been identified as Issues 1 through 3.<0>
Following an investigation, appellant requested a hearing, which was
held before an administrative judge (AJ) in January and February 1996.
The AJ subsequently issued a recommended decision (RD) in which he found
no discrimination with regard to all three issues. The agency thereafter
issued a final decision (FAD) in which it adopted the RD's findings of
no discrimination. It is from this decision that appellant now appeals.
Regarding Issue 1, the AJ found that, although appellant had established
that she was a "qualified individual with a disability," she had not
demonstrated that the agency had failed to reasonably accommodate her.
Specifically, the AJ found that, in fact, the agency had taken a number
of actions designed to accommodate appellant, including limiting her
hours and assignments, having other employees assist her to minimize
the need for her to walk, and hiring a college student to assist her.
Additionally, regarding appellant's request for her own parking space,
her supervisor (the Responsible Official, RO) offered her valet parking
and requested more parking spaces from the General Services Administration
(GSA).
With regard to Issue 2, the AJ found that, contrary to appellant's
position, the agency was lenient in granting her leave and that, although
she had been absent 54% of the time during the period in question,
it had accurately maintained her leave records. The AJ did note that,
when appellant initially exhausted her sick and annual leave, she was
mistakenly charged with continuation of pay. The record reveals, however,
that the error was corrected immediately by the agency.
Regarding Issue 3, the AJ found that the RO's inquiry to appellant's
psychiatrist did not constitute evidence of age discrimination.
The inquiry was made in a letter dated November 25, 1992, in which the
RO asked the psychiatrist to provide certain information in light of
recommendations the psychiatrist had made. The RO listed seven pieces
of information he needed, which were taken verbatim from the section of
the Federal Personnel Manual pertaining to reasonable accommodation.
The seventh item requested was "[a] narrative explanation of the
medical basis for any conclusion that the medical condition has or has
not become static or well-stabilized...." The letter goes on to list
the definitions for "static or well-stabilized medical condition," one
of which is a condition that is not likely to change "specifically as a
result of the normal-aging process." It is this statement that appellant
alleges is discriminatory.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
the RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We therefore discern no basis for
disturbing the AJ's finding of no discrimination. In so concluding,
we find appellant has offered nothing on appeal which establishes
that the RD, or any portion thereof, is incorrect. In this regard,
we find, in particular, that the agency went to considerable lengths to
accommodate appellant's disabilities. We also find insufficient evidence
to conclude that the agency purposely set out to incorrectly report her
leave, and, with the exception of the one mistake, it appears that the
agency accurately tracked her leave usage. Finally, we find that the
passage in the RO's letter to the psychiatrist, while it does use the
term "normal-aging process," is not a violation of the ADEA and does not
indicate a discriminatory animus on the part of the RO. Accordingly,
we find appellant has not established that she was discriminated against
as alleged.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find appellant has
not established that the agency discriminated against her as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Mar 4, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
01 Issue 1 is a combination of what had been two issues up to this
point of the process. To the extent both of these issues involved alleged
ways in which the agency had failed to reasonably accommodate appellant,
we find that they are properly considered as one issue.