01984225
09-28-2001
Karen S. Schauer, Complainant, v. Larry G. Massanari, Acting Commissioner, Social Security Administration, Agency.
Karen S. Schauer v. Social Security Administration
01984225
September 28, 2001
.
Karen S. Schauer,
Complainant,
v.
Larry G. Massanari,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01984225
Agency No. 960151SSA
DECISION
Karen S. Schauer (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that she was discriminated against on the basis of
disability (dissociative identity disorder, injured knee) and subjected to
retaliation for prior EEO activity (under Rehabilitation Act) when she was
suspended for 10 calendar days between January 10 and January 19, 1996.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Contact Representative, at the agency's Des Plaines,
Illinois facility, where she was detailed between May 1, 1995 and
November 9, 1995.<1> Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on March 13, 1996. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
she is a qualified individual with a disability within the meaning of the
Rehabilitation Act, finding that the medical documentation she submitted
did not support her claim that she has 16 different personalities.
The agency then noted that there was no evidence to establish that
complainant told management officials that she suffered a specific
limitation due to her mental disorder. The agency asserted that the
Rehabilitation Act only requires it to reasonably accommodate the
known physical and mental limitations of a qualified individual with
a disability, absent undue hardship, and concluded that management
officials were not told of any such limitations.
The agency went on to find that complainant failed to establish that
similarly situated employees were treated differently under comparable
circumstances, noting that she did not establish that individuals outside
her protected class who submitted two forged medical leave slips, as did
complainant, were treated more favorably. The agency stated that it was
not required to ignore or condone misconduct, even if it results from
an impairment that rises to the level of a disability, if it does not
excuse similar misconduct from other employees. The agency then noted
that complainant made conflicting statements in regard to her claim of
disability based on a knee injury and concluded that she failed to state
a claim of discrimination on that ground.
Although concluding that complainant failed to establish a prima facie
case of disability discrimination, the agency nonetheless articulated
a legitimate non-discriminatory reason for its actions. Specifically,
the District Manager (DM), named by complainant as one of the responsible
management officials, stated that complainant submitted forged leave
slips on two occasions and that this was grounds for discipline,
including dismissal. DM noted the agency's Standards of Conduct stated
that falsification of documents is a serious matter and that the leave
slip itself states that falsification may result in dismissal. The Area
Director (AD), also named by complainant as a responsible management
official, stated that after consulting with DM and the Personnel Office,
he issued the suspension, noting that excusing forged documentation is
outside what can be considered a reasonable accommodation. Although he
acknowledged that complainant claimed that one of her alter personalities
forged the slip, he concluded that the handwriting was complainant's
and that she knowingly falsified the record.
The agency noted that complainant failed to establish that this
explanation was a pretext for discrimination, finding that she admitted
to the misconduct and that her only excuse was that one of her �alter�
personalities was responsible.
The agency then found that complainant failed to establish a prima facie
case of reprisal, noting that there was no link between her protected
activity and the challenged action. The agency concluded that even
assuming a prima facie case had been established, complainant failed
to prove that the agency's legitimate explanation, as stated above,
was a pretext.
On appeal, complainant raises complaints about the processing of her
complaint, noting that the agency violated numerous time restraints.
She also asserts that when they received copies of the investigative
report, neither she nor her representative received instructions regarding
how to request a hearing. Complainant states that she therefore called
the agency to find out what to do, and was told that she did not need
to do anything at the present time, as she would receive a separate
letter in regard to requesting a hearing. Complainant avers that the
next document she received was the FAD.
The agency makes no reply to her contentions and requests that we affirm
its FAD, noting that it did not receive any statement in support of
the appeal.
ANALYSIS AND FINDINGS
As an initial matter, we find that complainant failed to establish that
she did not receive notice of her right to a hearing. The record includes
a copy of the notice of hearing rights, appropriately dated. Moreover,
although complainant contends that she spoke with her representative about
the lack of information concerning hearing rights, the representative
did not provide a statement corroborating this claim.
Turning to the merits of the case, we find that even assuming complainant
is a qualified individual with a disability within the meaning of the
Rehabilitation Act, she failed to establish that she was subjected to
discrimination based on her disability. <2> Commission guidance
holds that an agency may discipline an individual with a disability
for violating a conduct standard, even if the misconduct resulted
from the disability, as long as the conduct standard is job-related
for the position in question and consistent with business necessity.
See EEOC Enforcement Guidance on the Americans with Disabilities Act
and Psychiatric Disabilities (Psychiatric Disabilities), No. 915.002
(March 25, 1997), at question 30; see also Ayers v. United States Postal
Service, EEOC Appeal No. 01975550 (February 25, 2000) (no disability
discrimination, despite complainant's claim that his mental disability
caused his misconduct, where unrebutted testimony established that
employees who removed mail from the mail stream, as did complainant,
were never retained). Here, the record shows that complainant received
a 10-day suspension because she turned in two leave slips on which she
forged her doctor's signature. The unrebutted testimony of DM and AD
was that this behavior violated the agency's Standards of Conduct and
that employees were aware that such behavior would result in discipline,
including the possibility of dismissal. A standard which prohibits
employees from falsifying leave slips is job-related and consistent
with business necessity. See Psychiatric Disabilities, at question 30
(standards such as those which prohibit theft or intentional damage to
equipment are job-related and consistent with business necessity).
Furthermore, complainant did not show that she was treated differently
from other employees when she was suspended for falsifying leave slips.
Rather, she simply argued that because her disability caused her to
engage in this misconduct, it should be excused. As noted above, this
argument is without merit. See Carlton v. United States Postal Service,
EEOC Appeal No. 01954835 (September 30, 1997) (no discrimination where
complainant asserted that the misconduct which resulted in his removal
stemmed from a disability, but failed to show that he was treated
differently from other employees without disabilities).
Similarly, while an employer must make reasonable accommodation to
enable an otherwise qualified individual with a disability to meet
conduct standards which are job-related to the position in question
and consistent with business necessity, an employer is not required to
excuse past misconduct. See Psychiatric Disabilities, at question 31.
Here, after DM and AD confronted complainant about her misconduct, she
asserted that she violated the conduct standard due to her disability,
arguing that one of her alter personalities must have forged the doctor's
signature. Complainant acknowledged, however, that she had not asked
for a reasonable accommodation in connection with her mental impairment
prior to this point.<3> Even given that DM and AD must consider whether
a reasonable accommodation, absent undue hardship, would, in the future,
enable complainant to meet the standard prohibiting falsification of leave
slips, they need not excuse her past misconduct. See id; see also Brooks
v. Small Business Administration, EEOC Petition No. 03980014 (September
24, 1998) (where petitioner failed to ask for an accommodation prior to
his misconduct, agency is not obliged to excuse past misconduct even if
it was caused by his disability, alcoholism).
Finally, we find that complainant failed to prove by a preponderance of
the evidence that retaliatory animus, rather than a desire to prevent
employees from falsifying leave slips, motivated the agency's decision
to suspend complainant.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.<4>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
September 28, 2001
Date
1 Complainant was normally stationed at the Chicago North Office,
Chicago, Illinois.
2The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
3There is a dispute in the record as to when complainant asked for an
accommodation in relation to her knee injury, but complainant does not
dispute the agency's contention that she did not ask for a reasonable
accommodation based on her mental impairment until she was confronted
with the forged medical leave slips.
4 Complainant alleged on appeal that the agency failed to properly
process her complaint. Although complainant correctly noted that the
agency failed to complete the investigation within 180 days, she failed
to show that the delay, or any other processing problem, was motivated
by a discriminatory animus or affected the outcome of her complaint.