0120102440
08-03-2012
Debrah Middleton-Lane, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Debrah Middleton-Lane,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102440
Hearing No. 531-2009-00159X
Agency Nos. OCO-07-2258-SSA; OCO-08-0298-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the April 19, 2010 final Agency decision (FAD) 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Our review is de novo. For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Disability Support Examiner in the Office of Disability Operations in the Office of Central Operations in Baltimore, Maryland. On October 17, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability, age (52), and in reprisal for prior protected EEO activity under when:
1. She was not promoted to the position of Legal Administrative Specialist advertised under Vacancy Announcement numbers (VAN) B-3408 and B-3416.
Additionally, on June 5, 2008, Complainant filed a second EEO complaint alleging that she was discriminated against based on disability and in reprisal for prior protected EEO activity when:
2. Her request for advanced sick leave was denied and she was charged leave without pay (LWOP) for January 7 to January 25, 2008;
3. Management did not grant or respond to her February 20, 2008 request for reasonable accommodation; and,
4. She was the only Development and Support Examiner in her module assigned out-of-area paperless cases.
At the conclusion of the investigations, the Agency provided Complainant with a copy of the reports of investigation (ROI1 and ROI2) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). The complaints were consolidated, and Complainant requested a hearing. On July 23, 2009, the AJ ordered the parties to submit prehearing statements. Complainant failed to submit a prehearing statement, and the Agency motioned for sanctions. Complainant failed to respond to the Agency's motion. As a result, on October 7, 2009, the AJ dismissed the hearing request for failure to comply with his order to submit a prehearing statement and failure to respond to the Agency's motion for sanctions. The AJ remanded the complaint to the Agency, and the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b).
In the FAD, the Agency initially assumed arguendo that Complainant had established a prima facie case of discrimination on the alleged bases and found it had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, regarding claim (1), the Agency determined that Complainant timely applied for the positions, but her application did not rate high enough to make the best-qualified lists for either vacancy announcement. As to Vacancy Announcement VAN B-3408, applicants were ranked based on their knowledge and abilities concerning researching problems, adjudicating reviews, knowledge of policies and procedures, and their participation in formal or informal training. Complainant's application showed little training in these areas. Vacancy Announcement VAN B-3416 sought similar experience and training.
Complainant was under the impression that she, as a current employee with a disability, was entitled to be referred to the selecting official prior to the issuance of a best-qualified list. The Human Resources Specialist stated that she explained to Complainant that she would have been considered as a non-competitive candidate only if she were currently serving under an Excepted Service, Schedule A Appointment based on a qualifying disability. Complainant was not serving under such an appointment. As a result, Complainant was not referred on the best-qualified list and was not selected for either position.
Regarding claim (2), Complainant's second-level supervisor (S2) stated that Complainant's requests for advanced sick leave were denied because her requests did not contain sufficient supporting medical documentation. Complainant's January 9, 2008 request included a physician's note that stated that she was being released to work and Complainant had "received medical advice." Complainant's second request, dated January 23, 2008, included a physician's note stating that she had a fracture, that she was receiving medical treatment, and would have a follow-up appointment in four weeks. The documentation was forwarded to the Labor Relations office, which determined that the documentation was insufficient for advanced sick leave approval. The Agency allowed Complainant to provide additional medical documentation; however, Complainant failed to do so. As a result, Complainant was charged LWOP.
As to claim (3), Complainant requested job restructuring and a medical parking permit as reasonable accommodation. Complainant stated that she needed job restructuring due to her inability to lift and pull out voluminous folders. Further, she needed a medical parking space because she had a hard time walking. S2 denied the request for job restructuring based on Complainant's previously submitted medical documentation. The documentation only stated that Complainant's medical condition caused her pain on an intermittent basis, and at times, incapacitation, sometimes for more than one day. The documentation failed to state that Complainant could not perform the full range of her job on a continuous basis. As to the parking permit, her request was denied also for insufficient medical documentation.
In regard to claim (4), Complainant's first-level supervisor (S1) affirmed that Complainant told her that she had received all of the out-of-area paperless cases on one occasion in February 2008. S1 immediately investigated the matter and determined that the error occurred because of a technical issue. S1 maintained that upon learning of the error, the Agency adjusted their system to ensure that it would not occur again and all work was equally assigned to all technicians. S1 confirmed that she was not aware of the error happening at any other time before or after it was reported.
The Agency determined that Complainant had presented no evidence that its reasons were pretextual. As a result, the Agency found that Complainant had not been discriminated or retaliated against as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she has been systematically denied reasonable accommodation, advanced sick leave, and promotions. Complainant contends that she has been kept at her current grade despite years of exemplary service. Accordingly, Complainant requests that the Commission reverse the FAD.
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133. 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Hotley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
For purposes of analysis, the Commission will assume without so finding that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, and established a prima facie case of discrimination on the alleged bases. The Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), the record reveals that Complainant's application was rated too low to make the best-qualified lists for both positions. ROI1, Ex. 7, at 3; ROI, Ex. 8, at 3. The record reveals that Complainant was rated low in training and development for both positions. ROI1, Ex. 17b, at 4; ROI1, Ex. 18b, at 3. While Complainant believed that she should have been referred to the selecting official prior to the issuance of the best-qualified list, the Human Resources Specialist explained to Complainant that only employees serving under an Excepted Service, Schedule A Appointment were entitled to be considered non-competitively. ROI1, Ex. 6, at 3. Complainant was not working under such an appointment nor did she make either best-qualified list; therefore, she was not forwarded to the selecting official.
Regarding claim (2), the S2 affirmed that Complainant's advanced sick leave requests were denied because her supporting medical documentation was insufficient. ROI2, Ex. 12, at 2. More specifically, Complainant's first request, dated January 9, 2008, included a physician's note stating that Complainant had not been released and that she had received medical advice. Id. Complainant's second request, dated January 23, 2008, stated that she had a fracture, she was receiving medical treatment, and that she could resume work with restrictions on January 28, 2008. Id. Complainant's medical documentation did not state that she was totally incapacitated or why she was unable to work. ROI2, Ex. 13, at 3. Complainant was asked by her supervisors to provide additional medical documentation; however, Complainant failed to do so. Id. As Complainant had exhausted all of her leave, she was charged LWOP.
As to claim (4), S1 affirmed that Complainant informed her in February 2008, that she had received all of the out-of-area paperless casework and her co-workers had not. ROI2, Ex. 11, at 3. S1 stated that she investigated the matter and that the work was assigned to Complainant because of a technical error in the automatic system used to assign work. Id. at 3-4. Upon learning of the error, S1 adjusted the system so that this one-time error did not reoccur and to ensure all cases were assigned to the technicians equally. Id. at 4. S1 stated that she was not aware of the error happening prior to February 2008, or again thereafter. Id.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
The Commission finds no evidence in the record which would support a finding that the Agency's actions were based on discriminatory or retaliatory animus or that the reasons articulated by the Agency were mere pretext to hide unlawful discrimination. Accordingly, the Commission finds that Complainant has failed to show that she was discriminated or retaliated against as alleged.
Denial of Reasonable Accommodation
Under the Commission's regulations, an Agency is required to make reasonable accommodation to 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. See 29 C.F.R. �� 1630.2 (o) and (p). Again, for purposes of analysis, the Commission shall assume, without so finding, that Complainant is a qualified individual with a disability.
The Commission finds that Complainant has not shown that the Agency wrongfully denied her reasonable accommodation. The Agency denied Complainant's request for job restructuring and a parking permit because her medical documentation was insufficient. Specifically, as to job restructuring, Complainant's documentation did not indicate that she was unable to perform the full duties of her position. ROI2, Ex. 12, at 4. Complainant's submitted documentation only indicated her occasional need to be out of work and that she experienced pain which sometimes left her "incapacitated" for more than a day. The documentation did not state how frequently or to what extent Complainant's conditions affected her ability to perform her duties. Further, Complainant's medical documentation failed to indicate that the requested accommodations were necessary for her to perform the duties of her position.
The Agency needed sufficient medical documentation to evaluate Complainant's requested accommodation so that it could determine what accommodation would best serve the needs of the Agency and Complainant. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002, Question 6 (as revised Oct. 17, 2002). Moreover, when an individual's disability or need for reasonable accommodation is not obvious, and the individual fails to provide reasonable documentation requested by the employer, the employer will not be held liable for failure to provide the requested accommodation. Id. The record reveals that Complainant was given the opportunity to submit additional medical documentation and specific instructions as to what information the Agency needed; however, she failed to do so. Accordingly, the Commission finds that Complainant has not demonstrated that she was improperly denied reasonable accommodation.1
CONCLUSION
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 Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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 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 9-18 (Nov. 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:
______________________________ August 3, 2012
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Notwithstanding Complainant's failure to provide sufficient medical documentation, the record indicates that the Agency subsequently approved a special parking assignment for Complainant in a reserved area.
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0120102440
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013