0120071371
05-22-2009
Crystal M. Gresham, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Crystal M. Gresham,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120071371
Agency No. CDC-0049-2006
DECISION
On January 11, 2007, complainant filed an appeal from the agency's
December 14, 2006 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. 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 Management and Program Analyst in the Lead Poisoning and Prevention
Branch (LPPB) at the agency's Center for Disease Control in Atlanta,
Georgia. Complainant experienced problems breathing on October 10,
2006, and as a result was hospitalized. The record reveals complainant
was out of work from October 11, 2005, through March 7, 2006, while she
underwent testing and treatment for her medical problems.1
The record contains an October 26, 2005 form entitled "RETURN TO WORK OR
SCHOOL" signed by a nurse practitioner on behalf of Doctor 1. The form
notes complainant has been under Doctor 1's care from October 11, 2005,
through November 28, 2005, and states complainant is seeing a specialist
and cannot return to work. In subsequent forms, Doctor 1 continued to
extend complainant's inability to return to work through March 2006.
These notes do not contain a diagnosis or indicate when complainant will
be able to return to work.
On February 8, 2006, complainant's condition was first diagnosed by Doctor
2 as Chronic Obstructive Pulmonary Disease (COPD). Doctor 2 noted that
complainant has "a moderate level of disease with some persistence of
mild respiratory symptoms" and stated he has "fair control of symptoms."
The doctor noted the condition was chronic and stated that with control
of her symptoms, she could perform "light-duty desk or administrative
clerical work, or other similar type duties." The doctor stated the
"disease process might make it difficult for her to perform work duties
which require extreme physical exertion." Doctor 2 stated complainant's
symptoms were mild and "not currently debilitating, nor incapacitating."
On February 27, 2006, the Chief, Lead Poisoning Prevention Branch,
wrote complainant a letter noting that based on the February 8, 2006
letter from Doctor 2, complainant's symptoms were under "fair control"
and were "not currently debilitating." The letter provided a copy of
complainant's position description and asked complainant to have Doctor
2 review the position description and inform the agency if there are
any activities listed that complainant is unable to perform. The letter
stated that if the agency does not "receive administratively acceptable
medical documentation from her physician," then she must return to work
on March 6, 2006, or will be considered Absent Without Leave (AWOL).
In a March 1, 2006 follow up letter, Doctor 2 clarified complainant
could currently perform sedentary desk duties, but her condition
"may preclude her from performing physical tasks which would cause
exertional shortness of breath." Doctor 2 noted she "may experience
increased shortness of breath, or increased breathing symptoms" if she
were to perform "physically exertional activities, such as walking for
prolonged distances, or any activity requiring prolonged aerobic like
activities."
Complainant returned to work for half a day on March 7, 2006, and also
worked on March 8, 2006. Complainant submitted a form dated March 7,
2006, entitled "CONFIRMATION OF REQUEST FOR REASONABLE ACCOMMODATION" and
asked to work on light duty from her home. In her request, complainant
stated that while at work the past two days, the residual dirt and
dust generated by a construction site near her duty station caused her
respiratory condition to become worse. She stated her condition caused
shortness of breath whenever she performed bending, stooping, lifting,
pushing, pulling, walking short distances. Complainant stated that she
worked the past two days and has "experienced pressure to [her] chest
and severe headaches." Complainant stated she contacted Occupational
Health to have an assessment of her work space and in the meantime she
requested "to work from home until reasonable accommodations can be made
or medical disability is approved."
In a March 8, 2006 letter, Doctor 3 stated that complainant has "severe
fixed obstructive lung disease, atopic disease based on skin testing,
and has a 35-pack year history of smoking." The doctor notes complainant
has concerns that her "workplace environment may be playing a role in
her disease." Doctor 3 noted complainant is being evaluated for possible
"occupational lung disease and for a determination of disability."
The record contains a form entitled "Certification of Health Care Provider
(Family and Medical Leave Act)." The form is signed by Doctor 1 and is
dated March 10, 2006. The form states complainant is "Incapacitated -
not able to work." Under question 7, when asked if complainant is able
to perform work of any kind, the doctor answered "No."
In a March 10, 2006 letter, Doctor 1 noted complainant visited a
pulmonary specialist on March 8, 2006. Doctor 1 stated complainant
should not return to work until an assessment is completed by the agency
"to determine if her work environment is suitable for her diagnosis of
Chronic Obstructive Pulmonary Disease (COPD)."
On March 28, 2006, complainant's request for reasonable accommodation and
medical documentation was forwarded to the Office of Health and Safety
(OHS) for review by an agency physician. In an April 10, 2006 letter,
the agency's physician agreed with the March 10, 2006 assessment by
complainant's physician that complainant is incapacitated and unable
to work. The agency also noted that the requested accommodation would
require the removal of an essential function and/or would require the
lowering of performance or production standards. Thus, the agency denied
complainant's request to work from home and light duty.
On June 8, 2006, complainant filed an EEO complaint alleging that she was
discriminated against on the bases of race and disability. In its June
30, 2006 letter accepting complainant's complaint, the agency defined
the complaint as alleging discrimination and harassment based on race
(Black) and disability when:
1. Beginning October 5, 2005, and continuing complainant was denied
advance sick leave and participation in the leave donation program; and
2. On June 5, 2006, complainant's request for a reasonable accommodation
was denied.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). 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 prove that she was subjected to discrimination as alleged.
On appeal, complainant claims that the EEO Investigator failed to include
information from all of her identified witnesses. Complainant identifies
individuals who she claims could have provided relevant information
concerning her complaint. With regard to the claim that she was denied
advanced sick leave, complainant claims that she had no history of abusing
leave and states there was no legitimate reason to deny her request.
She claims her physicians gave a legitimate reason why she could not
return to work.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
At the outset, we find the record was properly developed. Specifically,
we note the record contains affidavits from complainant and all
relevant agency personnel. Additionally, complainant submitted a
rebuttal affidavit in which she responded to the statements made by
the responsible management officials. Further, the record contains the
relevant documentation surrounding complainant's medical condition, her
request for reasonable accommodation, and her request to participate in
the agency's Voluntary Leave Transfer Program (VLTP).
Upon review, we find the agency articulated legitimate, non-discriminatory
reasons for its action. The agency stated it denied complainant's request
for advanced leave at the time it was submitted due to complainant's
failure to provide sufficient medical documentation to support this
request, such as diagnosis, prognosis, and expected return date.
With regard to the denial of her request to participate in the VLTP,
the agency stated it denied complainant's request to participate in
the program beginning October 2005, based on the fact that she had 279
hours of annual leave and 169 hours of sick leave available for use as of
that time. With regard to complainant's second request to participate
in the VLTP, the agency explained it denied her request because the
medical documentation she submitted at the time stated complainant was
not incapacitated or debilitated. The agency stated that complainant's
third request for participation in the VLTP was denied because complainant
failed to submit any new medical documentation which would have negated
the statement submitted in the second request that complainant was
not incapacitated or debilitated. Complainant has failed to show that
the agency's articulated reasons for its actions was a pretext to mask
prohibited discrimination.
With regard to her claim of a hostile work environment, we note that
complainant claimed she was subjected to harassment in connection with the
agency's actions in denying her advanced sick leave, VLTP participation
and reasonable accommodation. Upon review, we find complainant failed
to show that the actions alleged were considered sufficiently severe or
pervasive to constitute actionable harassment. Moreover, complainant
failed to show that any of the identified actions were based on her race
or disability.
With regard to her denial of accommodation claim, the record reveals
that on March 7, 2006, complainant requested she be accommodated with
light duty work from her home. We note that the agency permitted
complainant to work from home while it was evaluating her reasonable
accommodation request. Moreover, we note the March 10, 2006 statement
from complainant's doctor, that complainant is unable to work at all
and the agency's physician concurred with her doctor. Furthermore,
we note complainant does not claim that she was forced to work beyond
her restrictions.2
Accordingly, the agency's final decision finding no discrimination is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
May 22, 2009
__________________
Date
1 Complainant submitted an application for Disability Retirement
on February 6, 2006. The agency forwarded complainant's disability
retirement letter to the Office of Personnel Management.
2 We do not address in this decision whether complainant is a qualified
individual with a disability.
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0120071371
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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