0120102819
04-11-2012
Carolyn Milford, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
Carolyn Milford,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120102819
Agency No. HHS-NIH-0169-2007
DECISION
On June 18, 2010, Complainant filed a timely appeal from the Agency's 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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
At the time of events giving rise to this complaint, Complainant worked as an Administrative Technician at the Agency's Laboratory of Molecular Genetics at the National Institute of Environmental Health Services in Research Triangle Park, North Carolina. Complainant began working for the Agency in 1993 and was injured on the job in 2002. After her injury, she worked full time from home from December 2002 through August 2005. The full time work from home schedule was terminated when Complainant's supervisor (S1) determined that there was not enough work an Administrative Technician could perform away from the office to fill an eight hour day, five days per week. S1 approved Complainant to work three days per week from home, placing orders via credit card, conducting the monthly reconciliation of those orders, and performing timekeeping duties. The Office of Workers Compensation Programs compensated Complainant for the remaining two days per week. This schedule was in place until August 2006 when Complainant returned to the office full time. One month later, Complainant went out on leave without pay to recuperate from shoulder surgery and did not return to work until August 31, 2007.
Between January and April 2007, in preparation for her return to work, Complainant requested full-time telework due to excessive pain caused by her arthritis, fibromyalgia, degenerative disc disease, osteoarthritis in her right knee and neck spasms. The medical documentation she provided did not adequately support the request so S1 granted her additional time off to provide more specific medical documentation. In April 2007, the Agency determined that it could not accommodate Complainant with a full time telework schedule because there were too many of the essential functions of her position, i.e., personnel duties, travel duties, and work related to audits, that Complainant could not perform remotely.
Because the only accommodation Complainant would consider was full time telework, in May 2007, management made an Institute-wide inquiry to determine if there was an available full time telework position for which Complainant was qualified1 and to which she could have been reassigned, but the search was unsuccessful. When Complainant returned to work on August 31, 2007, she was provided with an ergonomic chair and a specially designed keyboard. In addition, the record suggests that there was a motorized scooter available to help her move around the workplace.
On June 18, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability, 2 age (53), and in reprisal for prior protected EEO activity when she was denied reasonable accommodation.3 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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to establish a prima facie case of race and age discrimination because the three comparator employees she identified as being allowed to work full time from home were not in the same department or even the same Laboratory as Complainant. The decision concluded that she failed to establish a prima facie case of disability discrimination because she did not prove she was an individual with a disability within the meaning of the Rehabilitation Act. Finally, the decision determined that Complainant did establish a prima facie case of retaliation but failed to rebut the Agency's legitimate, nondiscriminatory reasons for its actions with any evidence of pretext.
This appeal followed. On appeal, Complainant argues that she is a qualified individual with a disability and that the Agency failed to engage her in the interactive process and failed to identify and provide her with a reasonable accommodation.
ANALYSIS AND FINDINGS
I. Disability Discrimination
For purposes of this analysis, we will assume arguendo that Complainant is a qualified individual with a disability. As such, she is entitled to a reasonable accommodation that permits her to perform the essential functions of her position, absent a showing that it would be an undue hardship for the Agency to provide. 29 C.F.R. � 1630.2.
The accommodation Complainant requested was to work from her home full time. During the time Complainant was working from home between December 2002 and August 2005, she was only placing orders via credit card, conducting the monthly reconciliation of those orders, and performing timekeeping duties. Other Laboratory administrative staff had to perform the tasks that Complainant could not do from home. Ultimately it was determined that the limited nature of the work she could do from home could not keep her engaged for forty hours, five days per week. Although Complainant argues that she could successfully do what had been expected of her, she does not rebut management's claim that she was not at the full performance of her position. No other administrative employee in Complainant's Laboratory was permitted to work full time from home which lends significant credence to the Agency's argument that Complainant could not perform the full range of the essential functions of her position from home. We conclude from the evidence of record that a full time work at home schedule would not have enabled Complainant to perform the essential functions of her position and therefore was not a reasonable accommodation within the meaning of the Rehabilitation Act.
We reject Complainant's argument that the Agency did not engage in the interactive process. To the contrary, Complainant's insistence on only one form of accommodation supports the conclusion that it was she who was unwilling to engage in the interactive process. Moreover, the Agency provided accommodations to her work station and apparently identified a motorized scooter that she could use to ease her mobility problems. Significantly, they also conducted an Institute-wide search for an appropriate reassignment. Ultimately, it is Complainant's burden to prove that there was a reasonable accommodation available. We conclude that she failed to meet this burden, and there is no evidence to support a finding that the Agency's actions prevented her from doing so. We find no violation of the Rehabilitation Act.
Race, Age and Reprisal
Upon review of this record, we find no evidence to support a finding of unlawful motivation on the part of Agency management. To the contrary, S1, who was the same race and close in age to Complainant, tolerated her long absence from the work place and her frequent need to rest when she was at work. She also reassigned some of the tasks Complainant could not perform when she was in remote status and tried to identify appropriate accommodations to enable her to continue working when she finally returned in 2007. Complainant does not challenge the Agency's conclusions in this regard on appeal. We find no violation of Title VII or the ADEA.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's 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
April 11, 2012
__________________
Date
1 She was asked to provide a resume so her skill set could be adequately considered.
2 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2007, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
3 Complainant also alleged that she was not given a performance appraisal in February 2007. The agency dismissed the claim for failing to state a claim, and Complainant has not contested the dismissal on appeal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120102819
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013