01A23380_r
10-30-2003
Janice P. Myers, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Janice P. Myers v. Department of Homeland Security
01A23380
October 30, 2003
.
Janice P. Myers,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A23380
Agency No. 99-015
Hearing No. 100-A0-7596X
DECISION
Complainant appeals to the Commission from the agency's May 23, 2002
decision finding no discrimination concerning her complaint of unlawful
employment discrimination. Complainant alleged discrimination on the
basis of disability (asthma/chronic obstructive pulmonary disease;
kidney dysfunction/chronic pyelonephritis and left nephrectomy) when:
On November 30, 1998, complainant's supervisor denied her requests for
reasonable accommodation (request to change her 7:00 a.m. report to work
time to an earlier hour; her request to telecommute; and her request to
change her compressed day off).
Complainant was subjected to a hostile work environment including being
restricted/confined to her office by management officials (she was unable
to use restroom facilities) and her supervisor failed to keep personal
issues confidential.
On February 8, 2000, complainant learned that a similarly situated
employee was allowed to change her schedule (early day) in order to
accommodate a medical request, while complainant has not been allowed
to do so.
Complainant was unfairly admonished/counseled regarding a backlog of work
assignments although it was known by management officials that she was
absent due to recovery from knee surgery and similarly situated employees
receive awards for assisting in clearing backlog involving her work while
she has been denied awards for clearing backlog involving other employees.
The agency accepted complainant's complaint for processing and
conducted an investigation. At the conclusion of the investigation,
an EEOC Administrative Judge (AJ), without holding a hearing, issued a
decision on April 24, 2002, finding that all claims were appropriate
for summary judgment. Specifically, the AJ found that complainant
failed to establish that she is a disabled individual. The AJ found that
complainant did not meet her burden to show that her medical conditions
for which she sought accommodation substantially limited any of her major
life activities. The AJ further found that, assuming arguendo complainant
had presented a prima facie case of disability discrimination, complainant
did not establish that she was entitled to the accommodation requested, or
that the agency treated her disparately because of her alleged disability.
Specifically, the AJ found that complainant's requested accommodations
were �not related to the performance of the essential function of
her position or her alleged disabling conditions.� The AJ found,
with regard to claim 2, that complainant failed to show the incidents
were severe or pervasive enough to create a hostile work environment.
Finally, the AJ found that complainant failed to present evidence that
she was treated less favorably than any similarly situated counterparts.
The AJ ultimately found that no material facts were in dispute and issued
summary judgment finding no discrimination. On May 23, 2002, the agency
issued a decision concurring with the AJ's findings. Complainant now
appeals the agency's May 23, 2002 decision finding no discrimination.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. 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). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Without making a determination on whether complainant is a person with a
disability, we find the AJ's summary judgment finding no discrimination
was proper. With regard to complainant's reasonable accommodation claim,
we find that the requested accommodation does not relate to the alleged
disability. The Commission has held that in seeking an accommodation,
an employee must show a nexus between the disabling condition and the
requested accommodation. See Haley-Martinez v. United States Postal
Service, EEOC Appeal No. 01A20092 (September 25, 2003) (citing Wiggins
v. United States Postal Service, EEOC Appeal No. 01953715 (April 22,
1997)). We find complainant's requested accommodation, to telecommute,
change in hours, or change in days off, does not relate to complainant's
disability (asthma/chronic obstructive pulmonary disease and kidney
dysfunction/chronic pyelonephritis and left nephrectomy). Therefore,
the agency was under no obligation to provide the requested accommodation.
With regard to complainant's claim of hostile work environment,
complainant has not claimed incidents severe or pervasive enough to
create a hostile work environment. Further, complainant has not shown
that any of the incidents were motivated by discrimination. With regard
to complainant's other two claims, complainant has failed to produce
evidence, other than her own statements, that she was treated less
favorably than her counterparts. Complainant has failed to show, by
a preponderance of the evidence, that she was discriminated against on
the basis of disability.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
October 30, 2003
__________________
Date