01-2006-4738_Shelton
05-14-2008
Ching S. Shelton, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Ching S. Shelton,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200647381
Agency No. 9D1S04028F06
Hearing No. 340-A5-0564X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 20, 2006 final order 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.
Complainant alleged that the agency discriminated against her on the
bases of disability (depression) and in reprisal for prior protected
EEO activity when: (1) on December 18, 2003, her supervisor Colonel
(C1) denied her request to work from home; and (2) on January 12, 2004,
her supervisor (S1) denied her request to work from home.
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.
Reasonable Accommodation Claims
Following a hearing, the Administrative Judge (AJ) concluded that
complainant's December 15, 2003 request to increase her telecommuting
schedule was denied because there was no medical need for the
accommodation.2 In addition, complainant's regular flexi-place schedule
was discontinued in January 2004, because complainant was needed at the
work-place due to a downsizing that resulted in key staff shortages.
In addition, management explained that complainant's work product was
minimal. However, despite management's position, on December 18, 2003,
C1 offered complainant the possibility to work from home if complainant
could advise her of specific work that complainant believed could be
accomplished from home. Complainant testified that she never responded
to C1's letter.
The AJ also concluded from the evidence, that on January 12, 2004,
complainant was transferred to Human Resources and placed under the
supervision of S1. Although complainant asserts that she requested
a flexi-place arrangement, S1 denies that complainant ever made such
a request and there is no documentary evidence in support of such
a request.
On January 28, 2004, complainant's psychologist reported that complainant
suffered severe depression which manifested in anxiety, bouts of fatigue
and a lack of concentration. Complainant's psychologist also concluded
that complainant's depression had progressed making her ineffective to
work in any position for the agency.
Reprisal Claims
With respect to complainant's claims of reprisal, the AJ concluded
that the agency stated non-discriminatory reasons for its December 15,
2003 denial. According to the record, complainant was not performing
at an acceptable level. In addition, complainant's absence from
the office resulted in others having to cover for her at meetings.
These responsibilities were eventually assumed by her co-workers,
C1 and other managers. There was also a staff shortage at this time,
due to the launching of rockets and a wind-down of the program. The AJ
also concluded that the termination of complainant's flexi-place was
logically connected to the objectives C1 wanted to achieve and the needs
of the launch program. Additionally, C1's December 18, 2003 denial letter
offered to make some possible accommodation on flexi-place, if complainant
would state specific tasks that she could do from home. Complainant did
not reply. Complainant offered no evidence to show the agency's stated
reasons were false, let alone a pretext for reprisal discrimination.
The AJ also noted that C1 spoke to complainant about cancelling
complainant's flexi-place program prior to complainant's request for an
accommodation or any other protected EEO activity.
With respect to complainant's January 2004 request for flexi-place work,
the AJ concluded that the record is devoid of evidence to establish
that any responsible management official was aware of complainant's
prior protected activity during the relevant time frame. Additionally,
the AJ concluded that there is no credible evidence in the record, that
complainant provided S1, or any other responsible management official,
with a request for reasonable accommodation or medical records.
In addition, the AJ concluded that the agency provided legitimate,
non-discriminatory reasons for denying complainant's flexi-place request
(i.e., there was no work that could be performed at home). The AJ also
noted that no one else had the privilege of a flexi-place arrangement
in the Department of Human Resources.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
May 14, 2008
__________________
Date
1 Due to a new data system, complainant's case has been re-designated
with the above-referenced appeal number.
2 We agree with the AJ and find insufficient evidence connecting the
request for increased flexi-place work with complainant's alleged
disability.
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0120064738
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036