0120070531
09-12-2008
Idalisa Nicastro, Complainant, v. Sheila C. Bair, Chairman, Federal Deposit Insurance Corporation, Agency.
Idalisa Nicastro,
Complainant,
v.
Sheila C. Bair,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120070531
Agency No. FDICEO050067
Hearing No. 110-2006-00181X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 30, 2006 final order concerning her
equal employment opportunity (EEO) complaint claiming 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.
Complainant worked as an Examiner in the Division of Supervision and
Consumer Protection in the Atlanta (Georgia) District Office (DO)
of the agency's Atlanta Region. Complainant claimed that the agency
discriminated against her on the basis of disability (shoulder, elbow)
and in reprisal for prior protected activity when, in September 2005
(a) she was not provided the reasonable accommodation she
requested following surgery (from an on-the-job injury);
(b) the agency sought medical documentation in support of her
request for a reasonable accommodation; and
(c) she was forced to take leave, including leave without pay
(LWOP), to account for her absences when work within her
medical restrictions was not available.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). On October 10, 2006, the AJ issued a
decision without a hearing, finding no discrimination.
Complainant had worked as an Examiner since 1997, and was assigned to
examine banks onsite at their offices and prepare reports.1 Complainant
suffered an on-the-job injury in August, 2004. Following surgery on
her elbow in June 2005, she returned to work in August 2005, with medical
restrictions that, among other things, required that she perform office
work only and limit driving to 30 miles per day. In September 2005,
she requested that the agency provide her a reasonable accommodation,
by being allowed to perform all her work in the DO and/or be detailed
to perform the work of higher-graded positions in the Regional Office.
The AJ's decision found that summary judgment was appropriate and that
the agency did not discriminate against complainant or create a hostile
work environment in regard to the issues she alleged; the AJ adopted
the agency's Motion for a decision without a hearing. The AJ dismissed
complainant's complaint based on reprisal,2 and found that complainant
did not show that she was subjected to a hostile work environment, and
that the agency articulated legitimate, nondiscriminatory reasons for its
actions, in response to which complainant did not demonstrate pretext.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when the AJ finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation is
patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the
substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003).
Here, we find there are no genuine issues of material fact in dispute.
Even assuming, arguendo, that complainant established a prima facie
case of discrimination based on disability, we find that she did not
show that the agency's actions created a hostile work environment, in
that, the events she cited were not sufficiently severe or pervasive.
In addition, considering each one as a claim of disparate treatment, the
agency articulated legitimate, nondiscriminatory reasons for its actions,
and complainant did not demonstrate pretext. Regarding issue (a),
complainant was not entitled to the specific reasonable accommodation
she requested,3 and the record shows that the agency worked with her
to find other effective solutions; regarding issue (b), an agency
may request medical information in support of a request for reasonable
accommodation,4 and the agency's request was not unreasonable in order to
clarify her restrictions and for the purpose of its long-range planning;
and, regarding issue (c), complainant was not entitled to be paid
leave beyond that which is provided to similarly situated employees.5
We note that, to the extent that she was entitled to reimbursement
through the Office of Workers Compensation Programs, Department of Labor
(OWCP), complainant must address that with OWCP. See generally Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998)
(The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding.); Kleinman
v. United States Postal Service, EEOC Request No. 05940585 (September 22,
1994) (same); Lingad v. United States Postal Service, EEOC Request No.
05930106 (June 25, 1993) (same).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the AJ's
issuance of a decision without a hearing was appropriate, and the
preponderance of the evidence of record does not establish that
discrimination occurred.6
Accordingly, the agency's decision is 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
__09/12/2008________________
Date
1 Complainant generally worked as part of a team under the direction of
a Commissioned Bank Examiner, who served as the Examiner-in-Chief for
each examination; she was not a Commissioned Bank Examiner.
2 Complainant's prior EEO activity occurred in 2001, when she filed a
formal complaint in July 2001; the complaint was subsumed as part of a
class action and remains pending. The AJ found that complainant's prior
EEO activity occurred too long ago to establish a causal connection.
In general, temporal proximity requires that the separation between the
employer's initial knowledge of the protected activity and the adverse
employment action at issue must be very close. See Clark County School
District v. Breeden, 532 U.S. 268 (2001) (holding that a three-month
period was not proximate enough to establish a causal nexus); EEOC
Compliance Manual, Section 8, Retaliation, pp. 8-18 (there must be proof
that the acting agency official(s) took the action at issue because of
complainant's prior protected activity and sought to deter complainant
or others).
3 See Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act (October 17, 2002), at
Question 7. This Guidance is available on the Commission's website at
www.eeoc.gov.
4 Id., at Questions 3, 6; also see 29 C.F.R. � 1630.2(o); 29 C.F.R. Part
1630 Appendix � 1630.2(o), � 1630.9.
5 Ibid.; see Guidance, p. 26.
6 We assume, without finding, for the purposes of analysis only, that
complainant is an individual with a disability as alleged.
??
??
??
??
2
0120070531
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070531