01994522
03-15-2002
Claudia Simmons, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Claudia Simmons v. Department of the Air Force
01994522
03-15-02
.
Claudia Simmons,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01994522
Agency No. 9V-IM-97-285
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning her formal complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the final agency decision is AFFIRMED.
ISSUES PRESENTED
The issues presented herein are whether complainant has proven by
preponderant evidence that she was discriminated against on the bases
of disability (stress and depression, ankle sprain) and sex (female)
when the agency denied her a reasonable accommodation, and whether
complainant's reprisal claim was brought to the attention of an EEO
counselor.
BACKGROUND
Complainant, employed by the agency as a Custodial Worker at the time
of the alleged discriminatory event, fainted in the workplace on May
23, 1997. Complainant returned to work approximately one week later
with a doctor's statement which indicated that she could work without
restrictions.
On June 18, 1997, complainant again fainted on the job. She was taken
to the base hospital where she was examined by an Emergency Services
physician, who recommended that complainant attend stress management
classes. Complainant was allowed to attend these classes on June 24-25,
and July 1, 8, 15, and 22, 1997. The stress management classes were
scheduled during complainant's tour of duty so her work schedule was
adjusted accordingly.
In August 1997, complainant submitted a statement, dated August 8,
1997, from a social worker<1> which recommended that she be given time
off from work to deal with her stress. The Commission notes that this
statement contained no work restrictions. Complainant argued that the
agency refused to accept the statement. The agency stated that it was
not aware of the statement until complainant filed an EEO complaint.
On August 13, complainant reported to work late. Upon her arrival,
she indicated that she had been attending a stress management class.
When complainant's third line supervisor stated to complainant that
her stress management classes had ended, complainant stated that she
was making up for the classes that she had missed. The third line
supervisor then stated to complainant that she needed to inform one
of her supervisors about the rescheduled classes, and pointed out to
complainant that she had missed work on August 1 and did not call anyone.
At that point, an argument between the two ensued. When the argument
ended, complainant made a few telephone calls from the lobby telephone.
After making the calls, she asked the third line supervisor for a piece
of paper and left. Twenty minutes later, an agency official found a
suicide note written by complainant. At that point, agency officials
searched for complainant, and found her with her head submerged in a sink
of water in the bathroom which, along with the suicide note, resulted in
the agency's police taking complainant to the hospital. A week later,
complainant was terminated for abandonment of her position when she did
not return to work.<2>
In addition to the above incidents, complainant asserts that one of her
supervisors once told her that the agency did not want female janitors.
Believing she was the victim of discrimination complainant contacted
an EEO counselor. When the matter was not resolved at the counseling
stage, complainant filed a formal EEO complaint in which she alleged what
has been identified as the issues presented. The agency accepted the
complaint for investigation. At the conclusion of the investigation,
complainant was informed of her right to elect a hearing before an EEOC
Administrative Judge or an immediate final decision from the agency.
When complainant failed to make an election within the required time
period, the agency issued a final decision finding no discrimination.
Complainant appealed.
ANALYSIS AND FINDINGS
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation for the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. � 1630.2(o); 29
C.F.R. � 1630.2(p). The Commission also notes that an employee must show
a nexus between the disabling condition and the requested accommodation.
See Wiggins v. United States Postal Service, EEOC Appeal No. 01953715
(April 22,1997).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that: (1)
she is an "individual with a disability"; (2) she is "qualified" for the
position held or desired; (3) she was denied a reasonable accommodation.
EEOC Regulation 29 C.F.R. � 1630.2(g) defines an individual with a
disability as one who: 1) has a physical or mental impairment that
substantially limits one or more of that person's major life activities,
2) has a record of such impairment, or 3) is regarded as having such an
impairment. EEOC Regulation 29 C.F.R. � 1630.2(h)(2)(i) defines "major
life activities" as including the functions of caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
To prove that she is a an individual with a disability, complainant
submitted medical documentation from two doctors (Doctor 1 and Doctor 2)
and a social worker. The statements from Doctor 1 and the social worker
do not prove that complainant is an individual with a disability because
they do not indicate how she is substantially limited in a major life
activity.<3> The statement from Doctor 2 indicates that complainant
is unable to work due to depression. Therefore, the only major life
activity identified by complainant is working. In order to demonstrate
that one is substantially limited in the major life activity of working,
the evidence must establish that complainant is substantially limited
in her ability to perform "either a class of jobs or a broad range of
jobs in various classes." 29 C.F.R. � 1630.2(j)(3)(i). The statement
from Doctor 2 fails to meet that criteria.
Complainant also argued that she is disabled due to an ankle sprain.
The medical evidence she submitted concerning her ankle sprain, however,
suggests that the condition does not constitute a permanent impairment.
See Doctor's May 29, 1997 Statement from the Oklahoma Sports Science
and Orthopaedics, P.L.L.C. (stating that complainant does not have any
permanent partial impairment due to the ankle sprain). The Commission has
stated that temporary, non-chronic impairments of short duration, with
little or no long term impact, are usually not disabilities. See EEOC
Interpretive Guidance on Title I of the American with Disabilities Act,
29 C.F.R. �1630.2(j).
For the above reasons, the Commission finds that complainant has failed
to prove that she has a physical or mental impairment that substantially
limits one or more of her major life activities. The Commission further
finds that there is no evidence which suggests that complainant had a
record of a disability, or that the agency regarded her as disabled.
Consequently, the Commission concludes that complainant has failed to
establish a prima facie case of disability discrimination.
Sex Discrimination
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether s/he has
demonstrated by preponderance of the evidence that the agency's reasons
for its actions merely were a pretext for discrimination. Id.; see also
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-717 (1983). Here, we find that the agency has stated legitimate,
nondiscriminatory reasons for its action. Specifically, the agency
stated that complainant was not given time off to deal with her stress
because her supervisory officials had no knowledge of the statement from
the social worker until after she filed her EEO complaint.
Because the agency has proffered a legitimate, nondiscriminatory reason
for the alleged discriminatory events, complainant now bears the burden
of establishing that the agency's stated reason is merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,
complainant has failed to meet that burden. While evidence in the file
indicates that certain agency officials did have a copy of the social
worker's statement before complainant's EEO complaint was filed, there
is no evidence that the agency's failure to act on the statement was
based upon complainant's sex or that complainant's supervisory officials
knew of the letter. Additionally, other than complainant's statement,
there is no evidence to support complainant's assertion that one of her
supervisors once told her that the agency did not want female janitors.
For those reasons, complainant's claim of sex discrimination fails.
Procedural Dismissal of Reprisal Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to
or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990). Complainant contends that she was subjected
to reprisal when the agency refused to provide her with protective eye
glasses and disciplined her when she suffered an on-the-job eye injury.
After examining the file, the Commission has determined that this issue
must be dismissed pursuant to �1614.107(a)(2) because it was not brought
to the attention of the EEO counselor, nor is it like or related to a
matter that was brought to the attention of an EEO counselor.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, the Commission AFFIRMS the
final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
__03-15-02________________
Date
1Both parties refer to the statement as a doctor's note. But it appears
that the statement was actually from a social worker.
2In her formal complaint and affidavit, complainant does not allege that
the termination was discriminatory.
3The statement from Doctor 1 indicates that complainant's depression
has been characterized by sad mood, heightened anxiety, poor appetite,
insomnia, and hopelessness all of which rendered her unable to work in
her current job environment. The statement does not indicate, however,
to what degree the above-cited symptoms affected the major life activities
of concentrating, eating, and sleeping. The statement from the social
worker merely indicates that complainant needed to take time off from
work to deal with her stress.