0120113327
09-21-2012
Brenda L. Grogan, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Brenda L. Grogan,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120113327
Hearing Nos. 410-2011-00008X
410-2011-00009X
410-2010-00062X
Agency Nos. 9R1M09056F11
9R1M09136F11
9R1M10022F11
9R1M09056
9R1M09136
9R1M10022
DECISION
Complainant timely filed an appeal from the Agency's May 10, 2011, final order 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether substantial evidence supports the EEOC Administrative Judge's (AJ's) finding that Complainant failed to prove that she was subjected to disparate treatment and harassment because of her disability and prior EEO activity; and (2) whether substantial evidence supports the AJ's finding that Complainant failed to prove that she was denied a reasonable accommodation for her disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as a WG-07 Fabric Worker with the 573rd Commodities Maintenance Squadron at Robins Air Force Base in Georgia. Complainant's position required operating sewing machines and band-saws and lifting 25 to 50 pounds, although the physical demands of Complainant's position varied.
In May 2005, Complainant injured her left hand while working with a band-saw. When Complainant returned to work, she was detailed to the Limited Support Work Squadron (LSWS) in the Agency's limited-duty program, which allowed her to be detailed to other organizations to perform clerical work within her limitations. Complainant returned to work with a 25-pound lifting restriction in 2005, but in the fall of 2008, an Occupational Medical Squadron physician (Dr1) estimated that she could lift only 14 pounds with her left hand.
Complainant volunteered for the Mercer Engineering Research Center Program (MERC Program), which was designed to return disabled employees to work. The MERC Program worked in conjunction with the Agency's Maintenance Wing. A MERC physician (Dr2) evaluated Complainant in the spring of 2008, and Complainant's physician (Dr3) prepared an evaluation report of Complainant. MERC's evaluation stated that Complainant could return to work in her prior position if her work routine were properly adjusted. On October 15, 2008, the Colonel reported that Complainant's lifting capacity had increased to 25 to 50 pounds based on MERC recommendations.
On October 24, 2008, Dr1 evaluated Complainant and reported that Complainant's "general work intensity" was zero to 25 pounds and restricted her from forceful two-handed activity and left-hand gripping. Complainant objected to Dr1's evaluation, and on December 17, 2008, Dr1 prepared another evaluation in which he rated her "general work intensity" at 20 to 50 pounds with significant weakness in her left hand. Dr1 further opined that Complainant should only attempt to lift more than 25 pounds if she had assistance.
MERC consultants subsequently determined that Complainant could operate the band-saw, operate the sewing machine, and perform a significant portion of the work that was done in the fabric shop. Complainant disagreed with MERC's determination and withdrew from the MERC program. Nevertheless, the Agency reassigned Complainant to the fabric shop based on the recommendations of the MERC consultations. Complainant objected to operating the band-saw, and the Agency assigned her to perform sedentary work within her limitations in the fabric shop for most of 2009.
Complainant filed EEO complaints in which she alleged that the Agency discriminated against and harassed her on the bases of disability and in reprisal for prior protected EEO activity when:
1. Management within the 402nd Commodities Maintenance Group failed to place Complainant in a position or train her for another position that accommodated her physical limitations;
2. On numerous occasions since 2005, and as recently as January 2009, Complainant's immediate supervisor (S1) made derogatory comments to Complainant and others in which he stated that limited-duty employees are sick, lame, lazy, or just faking;
3. On December 10, 2008, Complainant became aware that an Occupational Medical Squadron physician (Dr1) changed her medical restrictions on her form CA-17 without any medical justification or additional medical examination;
4. On December 12, 2008, Complainant withdrew from the Mercer Engineering Research Center Program (MERC Program), yet various unauthorized personnel continued to access and disclose her medical information;
5. Around January 2009, S1 informed Complainant that she was being returned to the fabric shop without an accommodation because of the MERC Program's recommendation, while it was unsafe for Complainant to perform the full range of duties of a fabric worker against the medical documentation advice of her doctors;
6. Around January 9, 2009, Complainant became aware that another physician (Dr3), the MERC Program Contractor, lied to the Office of Workers' Compensation Program's (OWCP) physician by stating that Complainant was re-examined, and her condition had improved so that management could change her physical restrictions and return her to the Fabric Worker position without accommodation;
7. On January 30, 2009, S1 attempted to intimidate, humiliate, and embarrass Complainant when he scared her by jumping into her cubicle and yelling at her, then continued to yell at Complainant and forced her to sign a job assignment letter, and also yelled and screamed at Complainant's representative during a telephone conversation, claimed that Complainant had no right to union representation for an EEO complaint, and disclosed her protected EEO activity;
8. On April 27, 2009, during a presentation of her annual appraisal S1 made disparaging remarks toward her by stating that she was faking her medical condition, which was costing the Agency money, and also gave Complainant a lower appraisal than what Complainant felt she deserved and told Complainant that he had previously given her lower appraisals because Complainant is disabled and to limit her advancement;
9. On April 27, 2009, S1 made threatening remarks toward Complainant by stating that Complainant managed to do what no one else had done, which was to make S1 mad, and also stated that when someone comes after him, he goes after them, and he knows how to do it because he knows how to manipulate the system;
10. On April 27, 2009, S1 stated that the reason Complainant did not get into another position is because she is disabled;
11. In April 2010, in a letter from the EEO office regarding Complainant's right to file a complaint, medical information about her was requested regarding her EEO complaints;
12. On or about September 11, 2009, a Colonel violated her medical privacy by contacting her doctor's office;
13. In May 2010, Complainant learned that the Colonel accessed her medical information and sent it to OWCP;
14. In May 2010, Complainant became aware that two Agency officials (C1 and C2) and the Colonel called and e-mailed her and indicated that she had to sign a release to allow the Colonel to perform a medical examination on her to determine whether she was fit to perform the duties of a position which would result in a downgrade;
15. On May 15, 2010, OWCP directed Complainant to get a mandatory second opinion based on two medical status sheets, while the Colonel directed the Occupational Medical Administrator (OMA) to deny her copies of the sheets; and
16. On May 17, 2010 and June 10, 2010, the OMA denied Complainant access to her medical file.
The AJ's Decision
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing in February 2011.
On April 8, 2011, the AJ issued a decision in which he found that Complainant failed to prove that she was denied a reasonable accommodation, subjected to disparate treatment, or subjected to a hostile work environment because of her disability or prior EEO activity. Specifically, the AJ found that Complainant was an individual with a disability but failed to prove that the Agency denied her a reasonable accommodation. The AJ determined that Complainant was provided with work on a steady basis after she was injured, and the Agency maintained her rate of pay. The AJ further noted that the Agency was willing to offer Complainant GS-3 and GS-5 jobs, and the technical defects in the job offers could have been resolved to Complainant's satisfaction if she had been truly interested in a job at those levels. The AJ concluded that Complainant may have been eligible for placement into a GS-6/8 career-ladder position but failed to show that there was a vacant GS-6/8 career-ladder position that she was qualified to be placed into during the relevant time period.
Additionally, the AJ determined that Complainant was accommodated when she returned to the fabric shop because she worked within her limitations. The AJ further determined that Complainant's assertion that the Agency did not do everything it could to find her a permanent position in the fabric shop was "halfhearted and it ultimately became clear that she was not truly interested in going back to work in the fabric shop" because she thought that she was unable to do most of the assignments in the fabric shop. The AJ determined that Complainant did not want to return to operating the band-saw even if she were physically capable of doing so because she had a "psychological dread" of performing that task. The AJ noted that Complainant testified that an exhibit reflected that she requested to be accommodated in the fabric shop, but Complainant was unable to point to language in the exhibit that reflected her claim. Therefore, the AJ concluded that Complainant's assertion that she wanted to return to the fabric shop was unpersuasive.
The AJ further concluded that Complainant was not interested in several jobs that the Agency offered her at the GS-3 to GS-5 level because she felt that they represented a reduction in status, even if she would have retained her rate of pay. However, the AJ noted that the job offers were found to be insufficient because they did not contain a specification with the exact duties that Complainant would perform. Instead, the job duties were found on a document attached to the job offers. The AJ concluded that if Complainant had been interested in one of the job offers, the procedural defects in the job offers could have been resolved to her satisfaction, but her real interest was in obtaining a GS-7 or GS-7/9 position. The AJ determined that a GS-7 position would have represented a "true transfer" for Complainant as a WG-7 employee, and a GS-7 position would have been a promotion because the rate of pay for the highest GS-6 level equates to the rate of pay for the highest WG-7 position.
Regarding the harassment allegations, the AJ determined that Complainant failed to prove that S1 made a series of disparaging remarks about disabled workers, except S1 conceded that he made one remark on the subject that was "less problematic than the Complainant's rendition would suggest." The AJ further determined that Complainant failed to prove that S1 berated her on January 30, 2009, or at any other time.
The AJ also concluded that each of the managers that Complainant asserted made anti-disability comments gave credible denials to the accusations, and Complainant failed to cast doubt on their credibility through cross-examination. The AJ reasoned that many of the alleged anti-disability comments by management were implausible because Complainant worked steadily after her injury, and the Agency placed over 50 disabled employees into permanent assignments during the relevant time period.
The AJ further concluded that it was unclear whether there was a conflict between Complainant's medical evaluations that were prepared in 2005 and the evaluations prepared in 2008 because all the evaluations reflected that Complainant had severe restrictions in her left hand, which restricted two-handed lifting. The AJ noted that MERC consultants thought that there were ways for Complainant to work around her limitations, but the Agency never forced the issue after Complainant objected to attempts to get her to work around her limitations.
The AJ also concluded that Complainant failed to prove that unauthorized personnel viewed her medical records, and the OMA credibly testified that he provided Complainant with copies of her medical records after she requested them. The AJ further noted that the Colonel denied sending Complainant's medical information to OWCP and requesting a medical release from Complainant in May 2009. However, the AJ noted that the Colonel acknowledged that he called the office of Complainant's doctor to seek clarification of a medical note that the doctor submitted to the Agency.
The AJ also found that, although Complainant asserted that S1 issued her a negative performance review, S1 credibly testified that he actually issued her a very high performance review. Finally, the AJ found that Complainant did not demonstrate that her recollection of the relevant events was more accurate than the recollection of management witnesses, and the record contained exhibits that tended to favor the Agency's contentions. The AJ further found that management testified in a consistent manner despite the complexity of the case. The Agency subsequently issued a final order adopting the AJ's findings.
On appeal, Complainant contends that the AJ erred in finding that she did not prove that the Agency violated the Rehabilitation Act and reiterates arguments made during the investigation and hearing. The Agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
In this case, we assume for purposes of analysis, and without so finding, that Complainant is a qualified individual with a disability within the meaning of the Rehabilitation Act. Nevertheless, after a review of the record, we find that the AJ's decision is supported by substantial evidence in the record. Specifically, we conclude that the AJ properly found that Complainant failed to establish that she was denied a reasonable accommodation. In so finding, we concur with the AJ's determination that Complainant did not work beyond her restrictions, and the Agency provided Complainant with work within her restrictions. We also concur with the AJ's finding that Complainant failed to prove that she was subjected to disparate treatment because Complainant did not show that the Agency's non-discriminatory explanations for its actions were a pretext for unlawful discrimination. Moreover, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that the alleged actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000). Finally, we find that substantial evidence supports the AJ's conclusion that Complainant failed to prove that the Agency improperly disclosed her medical information.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order.
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
September 21, 2012
Date
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0120113327
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113327