Janice P. Myers, Complainant,v.Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionOct 30, 2003
01A23380_r (E.E.O.C. Oct. 30, 2003)

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