0120123568
02-28-2013
Cassandra E. Brown, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
Cassandra E. Brown,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120123568
Agency No. AAFES11107
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 21, 2012, dismissing 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Store Associate at the Agency's Fort Polk Main Exchange Store facility in Fort Polk, Louisiana.
On September 29, 2011, Complainant filed a formal complaint alleging that the Agency failed to reasonably accommodate her diabetes, when, from November 2010 through July 2011, the Agency did not permit her to take her meal breaks consistently at three-hour increments and when the Agency retaliated against her for prior protected EEO activity when the Agency terminated her employment after the Union sent a memorandum regarding Complainant's request for reasonable accommodation.
The pertinent record shows that Complainant had diabetes which required her to eat at regular times and to rotate her sitting and standing. Complainant apparently was generally permitted her breaks, but she alleges that sometimes they were delayed (not exactly every three hours) when the store was busy. She was also permitted to eat candy while on duty and was provided with a stool, although she states that she could not effectively use the stool when assigned to work on very busy cashier lanes.
Dissatisfied with how she was being provided breaks, in May 2011, Complainant contacted her union representative. She told the union representative that she had not been able to eat at consistent times, or to rotate her sitting and standing, in accordance with her medical requirements.
On June 7, 2011, the Union submitted a memorandum to the Human Resources Specialist on behalf of Complainant requesting that the Agency comply with the medical requirements. The memorandum had the subject line "Request for Reasonable Accommodation." In the text of the memorandum, the Union stated "failure to accommodate a disability recognized under the ADA is considered disability discrimination." The memorandum also referenced two medical documents that Complainant had previously submitted to her supervisor in support of her request that she be provided breaks every three hours.
The Human Resources Specialist stated that she was suspicious that the medical documentation was falsified because of a notation on the copy of the prescription pad which indicated that the doctor had been away from the clinic for a year. Due to this suspicion, management contacted the health care provider's staff who indicated that the named physician had not worked at the location for a year and refused to acknowledge the authenticity of the signatures on Complainant's supporting documents.
On June 13, 2010, the Agency issued Complainant an "Advance Notice of Separation for Cause" for falsification of her medical documentation. The Agency subsequently effectuated the termination of Complainant's employment on July 16, 2011.
Following the investigation into Complainant's EEO complaint, the Agency issued a report of investigation. Complainant did not request a hearing before an Administrative Judge and the Agency issued a final decision concluding not discrimination had been proven. This appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, the Agency's decision is subject to de novo review. See EEOC Management Directive 110, Chapter 9, � VI.A. (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
For purposes of this analysis, we will assume without finding that Complainant was an individual with a disability. The record shows that she was able to perform the essential functions of her duties. Complainant maintains that she was denied her request for an accommodation to her disability by being provided breaks at consistent times.
The record supports Complainant's claim that, as early as November 2010, she communicated with her supervisor about her need for accommodation in the form of breaks every three hours and a stool. These were provided by her supervisor, although it appears that, as time went on, her breaks were sometimes delayed by 15-20 minutes when the store was busy. Eventually, in June 2011, Complainant, through her Union representative, notified management that it was not adequately accommodating her disability because of these delays and because she was often assigned to work the busy cashier lanes. Copies of her medical documentation were again provided. At this point, the evidence of record supports a finding that the Agency properly engaged in the reasonable accommodation interactive process by reviewing Complainant's concerns, and accepting and reviewing her supporting medical documentation. This review led management to discover that the medical documentation was falsified, which resulted in Complainant's termination.
Under the circumstances presented in this case, we do not find that the Agency violated the Rehabilitation Act by failing to provide Complainant with reasonable accommodation.
Reprisal
EEOC Regulation 29 C.F.R. � 1614.101(b) states that "No person shall be subject to retaliation for opposing any practice made unlawful . . . by the Rehabilitation Act . . .or for participating in any stage of administrative or judicial proceedings." Complainant may establish the elements of her reprisal claim by showing that: 1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmore v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
To the extent the Agency did not address Complainant's reprisal claim that she was terminated because she pursued her reasonable accommodation request, we find the Agency erred. However, we find there is sufficient information in the record for adjudication of this basis. Assuming Complainant established a prima facie case reprisal, she has not shown that the Agency's reason for her termination - that her medical documentation was falsified - was a pretext for discrimination or reprisal.
Accordingly, the Agency's final decision is AFFIRMED.
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 tends 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
February 28, 2013
__________________
Date
2
0120123568
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123568