0120081108
08-17-2009
Athenea Beltran, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Athenea Beltran,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120081108
Agency No. HS-04-CBP-0022621
DECISION
On January 4, 2008, complainant filed an appeal from the agency's November
30, 2007 final decision concerning her equal employment opportunity (EEO)
complaint alleging 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. and 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 pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency properly found that complainant was not denied a
reasonable accommodation or subjected to disparate treatment.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Customs and Border Protection Officer, GS-1895-11, at the agency's San
Diego Port of Entry in San Ysidro, California. The record reflects that,
on June 2, 2003, complainant suffered an injury to her right wrist while
on duty. On July 13, 2003, she submitted a request for leave without pay
indicating that she could not return to work until August 2, 2003, due
to a fractured wrist sustained on June 2, 2003.2 Complainant submitted
a second request for leave without pay dated August 27, 2008, indicating
that she would not be able to return to work until September 27, 2003.
Complainant returned to work on September 5, 2003. Although she had
primarily worked the "regular" or "day" shift from 8:00 a.m. to 4:00
p.m. before her injury, she was placed on the "swing" shift from 4:00
p.m. to midnight upon her return.
On September 19, 2003, complainant visited her doctor and obtained a
"Primary Treating Physician's Interim Report." The doctor's report stated
that complainant continued to suffer from discomfort in her right wrist
and that she believed that her discomfort was "due to the fact that she
is working day shifts, attending physical therapy, and then returning and
working a night shift. Additionally, the patient has to drive 60 miles
to her therapy location." The doctor's report indicated that complainant
"will limit her work from 8:00 a.m. to 2:00 p.m."
Complainant submitted the doctor's report on September 19, 2003 to
agency officials, including the Assistant Port Director and her direct
supervisor. She alleged that agency officials initially informed her
that she would not be given light duty despite the fact that she had
submitted her doctor's report. However, the Assistant Port Director
informed her later that day that, although the agency would not grant
her request to work from 8:00 a.m. to 2:00 p.m., she would be granted
a six-hour, light duty shift from 6:00 p.m. to midnight.
On October 1, 2003, complainant returned to her doctor's office for
an examination. The doctor's medical treatment report indicated that
complainant needed to continue working on limited duty from October 1,
2003 through November 1, 2003, and it listed several restrictions,
including limitations on repetitive movement, pushing, pulling, and
lifting. The report made no reference to when or how many hours she
should work. Beginning on October 5, 2003, complainant's duty hours
were changed from 6:00 p.m. to midnight to an eight hour, regular shift
from 8:00 a.m. to 4:00 p.m. On November 2, 2003, complainant returned
to work with no restrictions.
On December 9, 2003, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of national origin (Filipino), sex
(female), and disability (fractured wrist) or perceived disability when,
on September 19, 2003, her supervisor denied her doctor's request that
she be allowed to work six hours instead of eight hours as a result of
an on-the-job injury.3
The agency initially dismissed complainant's complaint pursuant to 29
C.F.R. 1614.107(a)(4) for raising the same claims that were raised
in a grievance filed through a negotiated grievance procedure that
permitted allegations of discrimination. Beltran v. Department of
Homeland Security, Agency No. CBP#04-057C/04-4050 (February 9, 2004).
However, the Commission reversed the agency's decision on appeal and
remanded the matter to the agency for further processing in accordance
with 29 C.F.R. � 1614.108. Beltran v. Department of Homeland Security,
EEOC Appeal No. 01A42810 (January 14, 2005), request for reconsideration
denied, EEOC Request No. 05A50496 (March 4, 2005).
On remand, at the conclusion of the investigation, complainant was
provided with a copy of the report of investigation and a notice of
her right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with complainant's request, the agency issued
a final decision pursuant to 29 C.F.R. � 1614.110(b), finding that
complainant failed to prove that she was subjected to discrimination
as alleged. Specifically, the agency's decision found that complainant
was not an individual with a disability, she was not denied a reasonable
accommodation, and she failed to establish that the agency's legitimate,
nondiscriminatory reasons for its actions were a pretext for unlawful
discrimination.
CONTENTIONS ON APPEAL
Neither complainant nor the agency submitted a statement on appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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. 29 C.F.R. �
1630.9. In order to establish that complainant was denied a reasonable
accommodation, she must show that: (1) she is an individual with a
disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified
individual with a disability pursuant to 29 C.F. R. � 1630.2(m);
and (3) the agency failed to provide a reasonable accommodation.
See Enforcement Guidance: Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, EEOC No. 915.002 (October
17, 2002) (Guidance). Here, we assume without finding that complainant
was a qualified individual with a disability within the meaning of the
Rehabilitation Act.
Upon review, we find that complainant was provided with a reasonable
accommodation because agency officials allowed her to work a light duty,
six hour schedule after she submitted her doctor's report on September
19, 2003. Complainant argued that agency officials informed her on
September 19, 2003 that she would have to work eight hour shifts from 4:00
p.m. to midnight despite the fact that her doctor had recommended that
she be placed on a six hour, light duty shift from 8:00 a.m. to 2:00 p.m.
However, complainant's supervisor submitted a statement into the record
indicating that she was placed on light duty status and assigned to a
secondary inspection area where no repetitive hand motions were used.
The supervisor also indicated that management placed complainant on the
swing shift to accommodate her afternoon physical therapy sessions.
The Assistant Port Director submitted a statement into the record
indicating that management scheduled light duty assignments based on
work load and medical restrictions, and complainant was only scheduled
to work six hours in accordance with her restrictions.
Although it is clear that complainant would have preferred a
different work schedule, we find that the record evidence does not
support complainant's contention that the agency was required to
grant her request to work the regular shift in order to provide her
with an effective accommodation. We note that, outside of her shift
assignment, complainant does not contend that agency officials required
her to work outside her medical restrictions, and she was returned to
a regular schedule after she submitted updated medical documentation
in October 2003. We further note that, although protected individuals
are entitled to reasonable accommodation under the Rehabilitation Act,
they are not necessarily entitled to their accommodation of choice.
See Guidance, Question 9. Therefore, we find that the agency met its
obligations under the Rehabilitation Act
Disparate Treatment
With respect to complainant's remaining claims, we concur with the
agency's finding of no discrimination. To prevail in a disparate
treatment claim, complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima
facie case by demonstrating that she was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). Proof of a prima facie case will vary depending on the
facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case of
discrimination with respect to all of her alleged bases of discrimination,
we find that the agency articulated legitimate, nondiscriminatory
reasons for its actions. Agency officials testified in the record
that complainant was provided with a light duty, six hour shift after
management received her request for an accommodation.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. We find that complainant failed to provide any evidence of
pretext in the record. Although complainant disputes statements made
by agency officials in the record and contends that several officials
indicated an unwillingness to provide her with an accommodation,
several agency officials submitted statements indicating that
complainant was given an accommodation. Moreover, the record reflects
that complainant was placed on a light duty schedule after September
19, 2003. Complainant did not request a hearing or submit a statement
on appeal, and the Commission is therefore limited to a review of the
record evidence. As a neutral party, we are not persuaded, based on the
record of investigation, that complainant has shown that the agency's
articulated reasons for its actions were a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the agency's decision
finding no discrimination is AFFIRMED.
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
________8/17/09__________
Date
1 Documents in the record also associate this case with agency
no. CBP#04-057C/04-4050.
2 Complainant also filed a claim with the Office of Workers' Compensation
Program.
3 Complainant's formal complaint only alleged discrimination based on sex
and national origin. However, she subsequently requested an amendment
to include discrimination based on disability or perceived disability.
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0120081108
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120081108