0120090170
07-11-2012
Audrey M. Scott, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Audrey M. Scott,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120090170
Agency No. 04-0205-SSA
DECISION
On October 9, 2008, Complainant filed an appeal from the Agency's 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 Commission deems the appeal timely and accepts it for 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
On October 21, 2001, Complainant accepted an appointment to the position of an Administrative Law Judge (ALJ) at the Agency's Office of Hearings and Appeals in Houston, Texas. Complainant moved to Houston, but her family remained in Memphis, Tennessee. In August 2002, Complainant, who had a history of medical problems, became seriously ill and was hospitalized. In April 2003, on her doctor's orders, she took leave under the Family Medical Leave Act and returned home to her family in Memphis. Complainant's doctor determined that it was not medically advisable that she live alone in Houston and recommended that she transfer to Memphis so that she could live with her family. On September 17, 2003, Complainant submitted a hardship transfer request along with a doctor's statement, which informed the Agency of her conditions, explicitly stating the medical need for her transfer. Her request was turned down because none of the ten ALJ positions in Memphis were vacant. The Agency informed her that once she completed twenty-four months of continuous service, she was eligible to apply for a voluntary reassignment pursuant to the collective bargaining agreement. In October 2003 she did so, and the reassignment register was updated to reflect her request.
On October 26, 2001, five days after the Agency hired Complainant and approximately 119 other individuals as ALJs, the Union filed a grievance alleging that the Agency violated the collective bargaining agreement when newly appointed ALJs, like Complainant, were hired for specific locations without first affording incumbent ALJs on the reassignment register to transfer to those sites. The Union alleged that twenty three incumbent ALJs had been adversely affected by the Agency's action. The grievance ultimately went to arbitration; the arbitrator found in the Union's favor; and the arbitrator's decision was ultimately affirmed by the Federal Labor Relations Authority. Consequently, the Agency complied with the arbitrator's award which required the twenty three grievant ALJs be given the opportunity to transfer to the location to which they had sought reassignment, if a new ALJ had been hired for that location in October 2001. In some cases, this meant that the Agency had to create a position even if there were no vacant slots.
In January 2004, one of the twenty three ALJs, ALJ13, who was then in Tupelo, Mississippi, was thus transferred to Memphis pursuant to a September 2001 reassignment request he had made. This brought the total number of ALJs in Memphis to eleven. In July 2004, one of the Memphis ALJs, who had been in extremely poor health, died thereby bringing the total back down to ten. When Complainant discovered that ALJ13 was allowed to transfer to Memphis, she filed an EEO complaint alleging disability based discrimination when her request to be transferred to Memphis was denied. At the conclusion of the investigation, Complainant requested that the Agency issue a final decision. The Agency issued a decision finding no discrimination. Complainant appealed, and on August 6, 2008, the Commission issued a decision, vacating the Agency's determination and remanding the complaint to the Agency to cure defects in its investigation, namely concerning the absence of information about the arbitrator's award and whether the ALJ, who was in such poor health, ever retired. See Scott v. Social Security Administration, EEOC Appeal No. 0120065195 (August 6, 2008). The Agency conducted a supplemental investigation and issued a second final decision, again finding no discrimination. This appeal followed.
ANALYSIS AND FINDINGS
We assume for purposes of this decision that Complainant was an individual with a disability within the meaning of the Rehabilitation Act. The only reasonable accommodation Complainant sought was a transfer to the Memphis office where there were ten ALJ slots. The Agency denied her request for reasonable accommodation because there were no vacant positions in the Memphis office. This was true even after the death of one of the ALJs because upon his death, there were ten remaining ALJs in Memphis. Although by operation of the arbitrator's award, the Agency was obligated to create a position for ALJ13 in Memphis, the Rehabilitation Act does not require an Agency to create a position as a form of reasonable accommodation. See EEOC Enforcement Guidance: Workers Compensation and the Americans with Disabilities Act, at question 23 (Sept. 3, 1996); EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, at page 39 (Oct. 17, 2002). As such, we decline to find the Agency liable for denying reasonable accommodation.
We also decline to find that Complainant was similarly situated to ALJ13. His request to be transferred to Memphis pre-dated Complainant's employment with the Agency, and his reassignment to Memphis resulted from the Agency's violation of the collective bargaining agreement. These circumstances do not support an inference of disability discrimination. Finally, even if Complainant's contention that ALJ13 should never have been a party to the grievance in the first place is true, we find that the Agency was still obligated to comply with the arbitrator's award, which clearly entitled ALJ13 to relief. Under these circumstances, we conclude that the Agency is not liable for a violation of the Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's second final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
July 11, 2012
__________________
Date
2
0120090170
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013