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
(