0120133131
09-15-2015
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120133131
Agency No. IRS-12-0091-F
DECISION
On September 4, 2013, Complainant filed an appeal from the Agency's August 9, 2013, final decision 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Clerk at the Agency's Internal Revenue Service facility in Kansas City, Missouri.
On January 19, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when:
1. Management failed to process her OWCP claim.
2. Management failed to provide her with a reasonable accommodation.
The Agency conducted an investigation of these claims. During the investigation, Complainant indicated that she had problems with several discs in her cervical spine that required surgery. In addition, she stated she had been diagnosed with tendonitis in her right wrist and had a "triggered thumb" on her left hand. She also stated that she experienced shooting pains on the left side of her body.
In December 2010, Complainant filed a claim with the Office of Workers' Compensation Programs (OWCP) because of the pain in her right wrist and left shoulder. Her claim was approved in March 2011, for her right wrist, but not her shoulder.
In April 2011, she injured herself falling from her chair at work. She stated that this caused numbing on the left side of her body. Complainant filed another claim with the OWCP. Complainant had surgery in July 2011, and did not return to work until August 2011. Complainant provided the Agency with updated forms for her OWCP claim. However, despite providing the Agency with all the required forms, Complainant asserted that her OWCP claim was delayed, and she was denied benefits on various dates from July 26 to October 8, 2011.
Complainant indicated she returned to duty following her surgery on August 9, 2011. Complainant was given assignments to do with only one hand and was provided with as much time as she needed to complete the tasks. By mid-August, 2011, Complainant asserted that filing was added to her assignments, for which she needed to use her right hand. In addition, she was to fill envelopes which included folding the forms to fit into the envelope. This required the use of her right hand as well. On August 25, 2011, she informed management that the new work assignments were causing a great deal of pain. Complainant provided medical documentation in October and November 2011. Management continued to try to give her work as a Mail Clerk. It was not until December 2011, that Complainant was reassigned to the security desk. Complainant alleged that management failed to reasonably accommodate her disabilities until she was reassigned to the security desk.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
Processing of OWCP - Claim (1)
The Commission has held that an EEO complaint alleging discrimination in connection with a workers' compensation claim before OWCP may state a claim within the Commission's jurisdiction only under limited circumstances. Schultz v. U.S. Postal Serv., EEOC Request No. 05950173 (Sept. 26, 1996); Hogan v. Dep't. of the Army, EEOC Request No. 05940407 (Sept. 24, 1994). In particular, a complainant may not use the EEO process to launch a collateral attack on the workers' compensation process. Story v. U.S. Postal Serv., EEOC Request No. 05960314 (Oct. 18, 1996). The Commission has recognized that the Agency has the right to represent its position and interest in the OWCP forum, and will not review decisions which would require it to judge the merits of a workers' compensation claim. Hogan, EEOC Request No. 05940407. Where Complainant alleges that the Agency discriminated in the processing of a workers' compensation claim -- for example, by failing to submit required paperwork -- then the complaint states an EEO claim. Foster v. U.S. Postal Serv., EEOC Appeal No. 01951370 (May 8, 1995), req. to recon. den., EEOC Request No. 05950693 (May 16, 1996). As this circumstance encompasses Complainant's complaint, we find that Complainant stated a viable claim.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). The Supervisor averred that she was provided with a file with Complainant's first request. She noted that she had been out on leave due to her own surgery when Complainant brought in the documents for the first request. She stated that the OWCP process was new to her and she completed the forms to the best of her ability. She asserted that she submitted Complainant's forms within four to five days of receiving the documents. The Supervisor indicated that she did get the forms back because she did not properly fill out the supervisory section. The Supervisor averred that it had been a learning process for her. She stated that some forms needed to be corrected by Complainant as well, who was not always cooperative. She also noted that when Complainant made some of her requests, the Supervisor was either out on leave or had a death in the family. However, the Supervisor averred that she did not delay the processing of Complainant's OWCP claims.
Based on a review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons. We now turn to Complainant to show that the Agency's reasons were pretext for discrimination. Complainant merely argued that that her OWCP was not properly processed and, as a result, she did not receive all of her benefits. However, Complainant did not show that the reasons provided by the Supervisor were pretext for disability-based discrimination. As such, we find that Complainant has not shown that the Agency subjected her to discrimination in violation of the Rehabilitation Act as alleged in claim (1).
Denial of Reasonable Accommodation - Claim (2)
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. Again, for the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Complainant also must show that she is a "qualified" individual with a disability within the meaning of 29 C.F.R. � 1630.2(m). We note that the discussion of "qualified" does not end at Complainant's position. The term "qualified individual with a disability," with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. � 1630.2(m). The term "position" is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is "qualified," an agency must look beyond the position which the employee presently encumbers. Accordingly, the agency should consider reassignment. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement Guidance - Reasonable Accommodation), No. 915.002 (revised October 17, 2002); see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o).
The record indicated that the Agency first attempted to accommodate Complainant within her Mail Clerk position in August 2011, when Complainant returned to duty. Based on the current medical documentation at that time, the Agency provided Complainant with work they believed was within her medical limitations. Complainant was assigned work she could perform with only one hand and given unlimited time to perform her assignments. However, as Complainant performed the assignments, she indicated that she could not perform the assigned work. Once Complainant provided updated medical documentation, the Agency made adjustments to her position. Once it was determined that Complainant could no longer perform in her position, she was assigned to the security desk in December 2011. Complainant argued that she should have been provided with the reassignment in August 2011. It appears from the evidence of record that the Agency actively engaged in a good faith effort to accommodate Complainant's medical restrictions as her medical documentation became available. Moreover, management witnesses stated, without dispute, that there was no vacant position available for Complainant until they reassigned her in December 2011. Based on the evidence, we find that Complainant failed to show that the Agency violated the Rehabilitation Act.
CONCLUSION
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 decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 15, 2015
__________________
Date
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