Arvelle Brewer, Complainant,v.Larry G. Massanari, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionDec 21, 2001
01993704 (E.E.O.C. Dec. 21, 2001)

01993704

12-21-2001

Arvelle Brewer, Complainant, v. Larry G. Massanari, Acting Commissioner, Social Security Administration, Agency.


Arvelle Brewer v. Social Security Administration

01993704

December 21, 2001

.

Arvelle Brewer,

Complainant,

v.

Larry G. Massanari,

Acting Commissioner,

Social Security Administration,

Agency.

Appeal No. 01993704

Agency No. 97-0488

DECISION

Arvelle Brewer (complainant) timely initiated an appeal from a final

agency decision (FAD) 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. The appeal is accepted pursuant to 29

C.F.R. � 1614.405. Complainant alleged that she was discriminated against

on the bases of age (52), disability (diabetes, high blood pressure,

Carpal Tunnel Syndrome, high cholesterol level and low thyroid level)

and reprisal (prior EEO activity) when:

(1) she was assigned Data Transcriber duties as a result of the transfer

of the Representative Payee Non- Responder workload;

on May 22, 1997 management issued to her a reprimand letter;

since 1991 management has not provided her with a formal position

description; and

management has not provided her with reasonable accommodations for her

[disabling] conditions.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Claims Clerk (OA), GS-998-04, with the Great Lakes Program Service

Center, Division 1, Module 3, Social Security Administration, Chicago,

Illinois. Believing she was a victim of discrimination, complainant

sought EEO counseling and subsequently filed a formal complaint on

July 15, 1997. 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. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision.

In its FAD, the agency dismissed claim (1), for failure to state a claim.

Specifically, the agency concluded that complainant was never assigned

the Data Transcriber duties. The agency noted that complainant alleged

that her supervisor was considering assigning Data Transcriber duties,

but this event never occurred. Therefore, the agency concluded that

complainant was not harmed by any personnel action.

Regarding claim (2), the agency concluded that management articulated a

legitimate nondiscriminatory reason for its action. Specifically, the

agency noted that the Reprimand Letter was issued due to insubordination

by complainant in refusing to take a direct order from her immediate

supervisor. Specifically, the agency found that on May 1, 1997 and

again on May 7, and 8, 1997, complainant's supervisor asked her to do

the management information (MIS) tally while the secretary who normally

performed this function was on extended leave, and complainant refused

to do it.

Regarding claim (3), the agency concluded that management has articulated

legitimate nondiscriminatory reasons for its action. The agency

noted that every year employees are provided a copy of their position

descriptions along with a copy of their performance plans. Specifically,

the agency concluded that a review of complainant's position description

shows that most of the duties performed by complainant are included in

her position description. However, duties requiring the preparation

of a variety of correspondence and other duties of a typing nature

have been removed from complainant duties in order to provide her a

reasonable accommodation.

Regarding claim (4), the agency concluded that management provided

complainant with a reasonable accommodation as required under the

Rehabilitation Act. Specifically, the agency concluded that in 1989

complainant requested reasonable accommodation for Carpal Tunnel Syndrome

only, she did not request accommodation for other disabilities.

The agency further stated that complainant was provided reasonable

accommodation when management removed the typing duties of complainant's

job of Claims Clerk.

ANALYSIS AND FINDINGS

A. Failure to state a claim

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No.05931049 (April 21, 1994).

Regarding claim (1), complainant alleged that she has never been assigned

Data Transcriber duties. Specifically, complainant stated that her

supervisor considering assigning her those duties, because her age.

The record reveals that this event never occurred. Therefore, complainant

suffered no harm or loss with respect to a term, condition, or privilege

of employment for which there is a remedy. The Commission AFFIRMS the

agency decision to dismiss claim (1) for failure to state a claim.

B. Disparate Treatment

In general, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)

(requiring a showing that age was a determinative factor, in the sense

that "but for" age, complainant would not have been subject to the adverse

action at issue). A complainant must first establish a prima facie case

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

reason was a factor in the adverse employment action. McDonnell Douglas

Corp. v. Green, 411 U.S. at 802; Furnco Construction Corp v. Waters,

438 U.S. 567 (1978). Next, the agency must articulate a legitimate,

nondiscriminatory reason for its action (s). Texas Department of

Community Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has

offered the reason for its action, the burden returns to the complainant

to demonstrate, by a preponderance of the evidence, that the agency's

reason was pretextual, that is, it was not the true reason or the action

was influenced by legally impermissible criteria. Burdine, 450 U.S. at

253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

the complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. U.S. Postal Service

Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).

Regarding claims (2) and (3), assuming arguendo, that the complainant

established a prima facie case of discrimination based on her age,

disability and reprisal for prior EEO activity, the Commission finds that

the agency has articulated a legitimate, nondiscriminatory reason for

its actions. As to claim (2), the agency articulated a nondiscriminatory

reason for issuing a reprimand letter, namely that complainant failed

to follow orders. Specifically, the record shows that management

asked complainant to perform the MIS duty and complainant refused. As

to claim (3), the agency alleged that annually, at the beginning of

each performance year, employees are provided a copy of their current

position description for their official position, along with a copy of

their performance plan. The agency alleged that complainant has been

provided this every year since 1995. The agency further alleged that

complainant's position description does not accurately describe the

complainant's duties, it is an accurate description for the position to

which complainant is officially assigned. The agency alleged that the

duties the complainant performs are different because her disabling

condition, specifically Carpal Tunnel Syndrome, which prevents her

from typing.

The burden returns to complainant to establish that the agency's

explanation was a pretext for discrimination. Upon review, the Commission

finds that the complainant has failed to do so. The

complainant argues that she has been working under the Claims Clerk

position description that does not accurately describe the duties she

is performing. Complainant also alleged that she performed some duties

that are not included in the Claims Clerk position, and she performed

all the duties included in the position, except the typing requirement.

Complainant merely argues that her age is a factor because she believes

that the agency is hoping for her retirement before it has to issue

her a new position description. Therefore, she failed to show that the

agency's action was a pretext for discrimination. Indeed, complainant

affirms the agency's reason that her duties are different because she

needs a reasonable accommodation for her Carpal Tunnel Syndrome.

Complainant further testified that she was reprimanded for refusing

to do Secretarial duties, which is grade 5 work. Complainant believed

that her age and alleged disability were factors in the determination

to issue her a reprimand letter �because management has a way of going

after older employees, and I'm in that category with medical problems.�

The Commission finds that complainant failed to present evidence that

the agency's reasons was a pretext for discrimination. Complainant did

not rebut the agency's reason that she failed to follow orders.

C. Reprisal

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to an

inference of discrimination. Shapiro v. Social Security Administration,

EEOC Request No. 05960403 (December 6, 1996). Complainant may establish

a prima facie case of reprisal by showing that: (1) he or she engaged in

a protected activity; (2) the agency was aware of the protected activity;

(3) subsequently, he or she was subjected to adverse treatment by the

agency; and (4) a nexus exists between the protected activity and the

adverse treatment. Whitmore v. Department of the Air Force, EEOC Appeal

No. 01A00340 (September 25, 2000).

Complainant contends that reprisal was a factor for the reprimand letter

because the reprimand was not issued until after she sought EEO counseling

about her job description and the incidents leading to the reprimand

occurred nearly three weeks before the reprimand was issued. Assuming

arguendo that complainant establish a prima facie case of reprisal we

find that complainant failed to establish a nexus between the reprimand

letter and her EEO counselor contact. The record reveals that the

Letter of Reprimand was issued due to an act of insubordination because

complainant refused to take a direct order from her immediate supervisor.

The record also reveals that the Letter of Reprimand took place starting

on May 1, 1997 and continuing on May 7 and 8, 1997, before complainant

talked to an EEO counselor on May 13, 1997. Therefore, we find that

the Letter of Reprimand was not issued as an act of reprisal.

D. Reasonable Accommodation

Whether proceeding under a disparate treatment or reasonable accommodation

analysis, complainant must establish that he is a qualified individual

with a disability. See Sims v. United States Postal Service, EEOC

Petition No. 03A00033 (Feb. 25, 2000); 29 C.F.R. 1630.4 (prohibiting

discrimination against qualified individuals with disabilities).

A "qualified" individual with a disability satisfies the requisite skills

and experiences for the job, and is capable of performing the essential

functions of the position with or without reasonable accommodation.

See 29 C.F.R. 1630.2(m). To prove a prima facie case, complainant also

must show that the agency took adverse action against him or failed

to provide a reasonable accommodation, and demonstrate that a causal

relationship exists between the agency's reasons for its actions,

and complainant's

disability. See Moore v. Department of the Army, EEOC Request

No. 05960093 (October 16, 1998).

An individual with a disability is one who: (1) has a physical or mental

impairment that substantially limits one or more major life activity;

(2) has record of such impairment; or (3) is regarded as having such

an impairment. See 29 C.F.R. 1630.2(g) (1)-(3). A physical impairment

includes any physiological disorder affecting, interalia, neurological,

musculoskeletal, and/or endocrine systems. See 29 C.F.R. 1630.2(h)(1).

The impairment must substantially limit complainant, or significantly

restrict him as to the condition, manner or duration under which

he performs a particular major life activity as compared with the

performance of the average person in the general population. See 29

C.F.R. 1630.2(j)(1)(ii).

Determinations regarding whether a complainant is an individual with a

disability must be made on a case-by-case basis. See Bragdon v. Abbot,

524 U.S. 624, 641-642 (1998). In determining whether complainant suffers

a substantial limitation to a major life activity, the Commission must

consider the nature and severity of the impairment, the duration or

expected duration of the impairment, and the permanent or long-term

impact resulting from the impairment. 29 C.F.R. 1630.2(j)(2)(i)-(iii).

We will assume for purposes of the decision that complainant is a

qualified individual with a disability. However, complainant failed to

establish that management failed to provide her reasonable accommodation

for her alleged disability. The record reveals that complainant requested

reasonable accommodation for the Carpal Tunnel Syndrome back in 1989,

that was the only allegedly disabling condition for which complainant

requested reasonable accommodation. Complainant's testimony and that

of management attested to the fact that complainant was provided

reasonable accommodation when management removed the typing duties of

her job of Claims Clerk, to which complainant was officially assigned,

based upon her Carpal Tunnel Syndrome condition. We conclude that the

agency provided a reasonable accommodation in accordance with the law.

Therefore, after a careful review of the record, 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

December 21, 2001

__________________

Date

(