0120071224
09-12-2008
Ellen R. Taylor, Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.
Ellen R. Taylor,
Complainant,
v.
Alphonso Jackson,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120071224
Agency No. LB0402
Hearing No. 100-2005-00048X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 6, 2006 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.
On DATE, complainant filed the instant formal complaint. Therein,
complainant claimed that the agency discriminated against her on the
basis of disability (Graves Disease, Fibromyalgia, Generalized Anxiety
Disorder and Sleep Disorder) when:
1. On September 11, 2003, the Deputy Director of the Office of
Healthy Homes and Lead Hazard Control failed to grant complainant's
request for a reasonable accommodation;
2. On November 20, 2003, complainant became aware that she had been
reassigned, effective October 12, 2003, from the position of Division
Director, Healthy Homes and Lead Hazard Control, to the position of
Community Outreach Officer, a position that was not consistent with her
accommodation needs and for which she believed she did not qualify; and
3. The Deputy Director failed to adhere to the department's
procedures governing reasonable accommodation requests.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). Complainant withdrew her request for
a hearing because she indicated that she was going to file a complaint
in district court.1 The AJ assigned to the matter returned the file to
the agency. The agency issued a final agency decision (FAD) finding no
discrimination.
The record reveals that complainant was on approved medical leave from May
31, 2003, until June 20, 2003, when she was released to return to work.
Complainant's doctor recommended that complainant avoid stress and
that she have sufficient time to rest and exercise. Upon her return,
complainant spoke with the Director and Division Director about cutting
back on her hours because she could no longer sustain her performance
at work due to her health problems. In August 2003, complainant
verbally requested that she be allowed to work a part-time schedule as
a reasonable accommodation. The Deputy Director asked complainant
to put her request in writing and to provide medical documentation.
In the mean time, complainant was allowed to have a three-day work week.
Complainant was told, however, that she could not continue to work as
the Division Director on a part-time basis.
On September 11, 2003, complainant made a written request for reasonable
accommodation. Complainant requested a part-time schedule in a low
stress environment. While her medical documentation was being evaluated
by the Department's Medical Officer, complainant was assigned oversight
of a major project.
The Deputy Director indicated that while he knew that complainant had a
health problem in July or August 2003, there was no formal determination
regarding her condition at that time. The Deputy Director stated that
complainant had indicated to him that the Division Director's job had
become too stressful, so he had begun to accommodate her before he even
knew the specifics of her condition. The Deputy Director indicated that
complainant had been granted a part-time schedule, advance sick leave,
leave without pay, and a different work assignment.
In order to work within complainant's restrictions, the Deputy Director
reassigned complainant to the position of Community Outreach Officer,
effective October 12, 2003. The Deputy Director maintained that he spoke
to complainant about the position, but complainant had no recollection of
this conversation. The position had been upgraded to fit complainant's
grade level and included some of the duties that she had already been
doing as a Division Director. Complainant maintained that she was not
qualified for this position.
On appeal, complainant reasserts arguments previously made.
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").
Under the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodation for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)
and (p). As a threshold matter, a complainant claiming discrimination
based on disability must show that s/he is an individual with a disability
within the meaning of the Rehabilitation Act. An individual with a
disability is one who shows that s/he has, has a record of having, or is
regarded as having, an impairment that substantially limits one or more
major life activities. 29 C.F.R. � 1630.2(g). For purposes of further
analysis, we assume arguendo that complainant is an individual with a
disability and is entitled to coverage under the Rehabilitation Act.
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.
The record supports the agency's finding of no discrimination. The facts
show that complainant was indeed offered reasonable accommodation.
Complainant was allowed to work a three day work week prior to providing
medical documentation, she was also allowed advance leave, and leave
without pay.
Regarding complainant's contention that she was reassigned from the
position of Division Director to the position of Community Outreach
Officer, a position that she maintained was not consistent with her
accommodation needs and for which she believed she did not qualify, the
Commission again finds that the record supports the agency's finding
of no discrimination. Complainant contends that she did not agree to
the reassignment. However, the record indicates that at some point
in 2003,2 she had a conversation with the Deputy Director, regarding
relocating her to the Community Outreach Officer position because she was
already doing outreach in the Division Director position.3 The Deputy
Director indicated that he was under the impression that complainant
had agreed to the reassignment so that she could decrease the stress
associated with the Division Director position. After the conversation,
the position description for Community Outreach Officer was rewritten
to upgrade the position to the GS-15 level. We note that, although
there is conflicting evidence regarding complainant's acceptance of the
reassignment, based on the record before us, we find that a preponderance
of the evidence indicates that complainant was offered and accepted the
reassignment to a vacant funded position that fit her restrictions.
While complainant indicated that she did not feel that she was well
suited for the position, she provided no evidence that she could not
do the job. We note that the Commission's Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the ADA, at Q. 9
(Rev. October 17, 2002) states that an employer need not provide the
reasonable accommodation requested, but must provide an effective one.
Moreover, while complainant would have preferred to stay in the Division
Director position working part-time, the agency has shown that it would
have been an undue hardship to allow her to retain her Division Director
position on a part-time schedule. Specifically, the agency maintained
that there was too much work and responsibility associated with that
position to allow a part-time schedule. Moreover, complainant failed
to show how the accommodation offered to her was not effective or was
outside of her restrictions. Accordingly, she is not entitled to the
accommodation of her choice.
Further, with respect to complainant's claim that there was a delay in
granting her request for reasonable accommodation, the record reveals
that the request for accommodation had to be reviewed by the agency's
medical personnel. Notwithstanding, the record indicates that, during
that time, complainant was offered accommodation.
Additionally, based on the record, we note that complainant is also
alleging a case of hostile work environment. To establish a prima facie
case of harassment/hostile work environment, complainant must show that:
(1) she belongs to a statutorily protected class; (2) she was subjected
to unwelcome conduct related to her protected class; (3) the harassment
complained of was based on her protected class; (4) the harassment had the
purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 987, 903
(11th Cir. 1982).
In the present case, while we note that there are several affidavits
pointing out the intolerable management style of the Deputy Director,
there was no evidence presented that it was specific to complainant or
that it was related to her impairment. In fact, according to the record,
there were many complaints by a variety of workers regarding the Deputy
Director's management style. Accordingly, we find that complainant
cannot prove that she was subjected to a hostile work environment on
the bases of her disability.
Based on the foregoing reasons, we find that the preponderance of the
evidence of record does not establish that discrimination occurred.
The agency's FAD is hereby affirmed.
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
09-12-08
__________________
Date
1 There is no evidence included in the file that indicates that a
District Court case was filed.
2 The Deputy Director maintains that he and complainant had a
conversation regarding the Community Outreach Officer position in July
or August of 2003. Complainant contends that the conversation did not
take place until October 2003.
3 Complainant maintains that the Deputy Director failed to engage in
any meaningful interactive process and failed to include the Disability
Program Manager in the conversation.
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0120071224
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071224