0120090531
10-06-2011
Kelley R. Monroe, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Kelley R. Monroe,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120090531
Agency No. 9V1M05108F06
DECISION
Complainant filed an appeal with this Commission concerning her complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency’s decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was
employed as an Aircraft Engine Repairer, Wage Grade (WG)-8602-09,
assigned to the Agency’s TF33 Engine Branch, Propulsion A Division,
76th Propulsion Maintenance Group, 76th Maintenance Wing (76 PMXG/MXPAA)
at Tinker Air Force Base (AFB), Oklahoma. Report of Investigation
(ROI), at 2. Complainant sought counseling and subsequently filed a
formal complaint.
Complainant alleges that she was subjected to discrimination on the
bases of disability and in reprisal for prior protected EEO activity when:
1. From January 2004, through December 21, 2004, member of management
and the Civilian Personnel Office failed to accommodate her disability.
2. From November 28, 2004, through January 6, 2005, Complainant’s
immediate supervisor failed to process the paperwork for her application
for disability retirement.
At the conclusion of the investigation, Complainant received a copy of
the investigative report. Additionally, the Agency informed Complainant
of his right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the Agency.
More than thirty calendar days elapsed with Complainant failing to
either request an EEOC hearing or a final decision from the Agency.
Therefore, the Agency issued a final decision be issued on the merits
of the complaint pursuant to 29 C.F.R. § 1614.110. On September
29, 2008, the Agency issued its decision finding no discrimination.
Thereafter, Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
With regard to Complainant’s claim that she was denied a reasonable
accommodation, Complainant stated that she injured her right should
rotator cuff on the job on July 9, 1997. The injury was first
identified as a sprain, but later diagnosed as an aggravation of cervical
spondylosis, or arthritis of the neck. On April 22, 1998, Complainant
filed a claim with the Office of Workers’ Compensation Programs (OWCP),
claiming that the activities of her position as an Aircraft Engine
Repairer, WG—8602-09, had caused a strain in her left shoulder and a
left lesion in her ulna nerve. The two medical conditions were combined
into one claim, which was accepted by OWCP. ROI, at Exhibit F-15.
On June 4, 2001, an orthopedic physician of the Orthopedic and Arthritis
Center and Arthritis Center at the McBride Clinic, Inc. (physician 1)
rendered a medical evaluation that Complainant was able to return to
work with permanent restrictions, i.e., occasional reaching above the
shoulder and repetitive movement of the elbow; no pushing, pulling
or lifting in excess of twenty-five pounds, and no crawling or using
her arms to climb. On June 21, 2001, the OWCP advised Complainant
that, as the Agency was unable to “offer suitable light duty to
accommodate your work limitations,” Complainant would be transferred
to the Rehabilitation/Claims Unit. Accordingly, on June 26, 2001, OWCP
referred Complainant for development of a vocational rehabilitation plan,
and Complainant entered an Associate Degree Program for paralegals at
Rose State College in January 2002. ROI, at Exhibit F-15.
The Agency continued job search efforts while Complainant attended
vocational rehabilitation. Specifically, on March 15, 2002, Complainant
was offered limited duty as an Aircraft Mechanical Parts Worker,
WG-8840-07, and on April 18, 2002, Complainant was offered another limited
duty position as a Tools and Parts Attendant, WG-6904-06. In both
instances, Complainant objected to the position offered and, through
her representative at the time, requested the job offer be withdrawn.
The initial offer was apparently withdrawn. However, OWCP determined
that the offer of a Tool and Parts Attendant, WG-690406, was a valid
job offer and established a date of May 20, 2002, for Complainant to
report to work. In response, physician 1 indicated that Complainant
was medical unable to perform the duties of the position at issue.
A second medical opinion, submitted by a Doctor of Osteopathic Medicine
(physician 2) on August 21, 2002, further stated that Complainant could
not perform “ordinary manual labor”, and recommended Complainant be
trained for a desk type of work. Complainant was therefore, permitted
to decline the offer. ROI, at Exhibit F-15.
During December 2003, Complainant received an Associate Degree in
Legal Assisting, and during February 2004, efforts were initiated by
her rehabilitation counselor to help her find work as a paralegal.
Following an unsuccessful attempt to find a paralegal position with the
Agency, a vocational assessment was completed. However, Complainant
did not secure employment, and on August 6, 2005, OWCP determined that
continued placement efforts were no longer warranted because Complainant
had failed to secure a job even though sufficient paralegal positions
were available in her commuting area. Therefore, on October 4, 2004,
OWCP informed Complainant that she was no longer totally disabled based
on OCWP standards as she now had that earning capacity of $605.00 per
week as a paralegal. Accordingly, based on Complainant’s earning
capacity on November 10, 2004, Complainant’s OWCP compensation was
reduced to $138.06. ROI, at Exhibits F-15 and F-25.
Approximately on December 1, 2004, the Aircraft Engine Repairer
Supervisor, Complainant’s immediate supervisor, received a letter
from Complainant advising him that she was a current employee, and
requesting reasonable accommodation to her “disability.” At the
time, Complainant indicated that she could not lift more than five
pounds, crawl, climb, or reach above her shoulder. On December 10,
2004, the Chief of the Product Support Employee Relations Section (Chief)
responded to Complainant’s request, and on December 23, 2004, the Chief
sent a letter to Complainant requesting that she submit updated medical
documentation certifying her current physical restrictions. On January
9, 2005, Complainant submitted a Work Restrictions Evaluation completed
by physician 1 on November 22, 2004, which diagnosed Complainant with
chronic soft tissue inflammation, and confirmed Complainant was able
to lift, push, or pull up to five pounds intermittently (no more than
three hours per day total), but unable to work on ladders or scaffolding,
climb, kneel, twist, reach/work above her shoulder, work around machinery
with moving parts, or be exposed to vibrations. A job search in the 76th
Maintenance Wing was conducted, but no suitable position was identified.
By letter dated January 26, 2005, Complainant was referred to the
base-wide Medical Identification and Referral Program. Placement efforts
through this program were also not successful. Complainant subsequently
submitted an application for disability retirement benefits, which was
approved by the Office of Personnel Management (OPM) on June 24, 2005.
ROI, at Exhibits F-1, F-16, F-17, and F-19.
Complainant argued that, during January 2004, when the Agency became aware
of her Associates Degree in Legal Assisting, it should have immediately
initiated a job search to place her in a vacant position based on her
skills, training, experience, care desires, and physical limitations.
Complainant claimed that no appropriate accommodation action was taken by
the Agency until December 21, 2004, following the Agency’s receipt of
the letter she sent to the Aircraft Engine Repairer Supervisor earlier
that month. Complainant argues that the Agency’s failure to initiate
a job search was based, at least in part, on her physical disability
and previous protected activity. ROI, at Exhibit B-3.
Assuming Complainant was a qualified individual with a disability,
we find that Complainant failed to show that the Agency denied her a
reasonable accommodation from January 2004 through December 21, 2004.
The Chief explained that Complainant’s agreement to enter the Vocational
Rehabilitation Program (VRP) under the Department of Labor (DOL) was
a legitimate attempt to accommodate Complainant’s medical condition.
Further, the Chief pointed out that, once an employee has been placed
into vocational training under the DOL, placement efforts become the
responsibility of the VRP, and job placement efforts were being made by
her rehabilitation counselor during the period in question. Further, the
Chief, stated that when Complainant contacted the Agency during December
2004, with information that she was no longer in the program and sought
accommodation in her position of record, job searches were initiated in
the 76th Maintenance Wing and the base-wide Medical Identification and
Referral Program as soon as Complainant provided documentation confirming
her current physical restriction. ROI, at Exhibit F-5.
Therefore, we find that the Agency has articulated a legitimate
nondiscriminatory reason for the conduct challenged by Complainant.
Complainant argued that, after she completed her paralegal degree in
December 2003, she met with her rehabilitation counselor, and that he told
her that he would contact a Human Resources Specialist in the Employee
Relations Benefits Office at Tinker AFB to start a job search there.
Complainant said that, in addition, she asked her spouse, who was employed
at Tinker AFB, to ask around to see if there was anything available
for her. Complainant explained that she expected to be place on the
Medical Priority Placement List, but by late July or early August 2004,
she had not heard from anyone at Tinker AFB. Complainant stated that,
about this time, she became aware of a Legal Assistant vacancy at Tinker
AFB, but although her rehabilitation counselor indicated he would look
into it, she heard no more about it. Complainant stated that she did not
understand why Tinker AFB was more proactive in her job search and did not
refer her to other Federal agencies for employment. Complainant argued
that sending an employee to school under a VRP does not release the Agency
from placing an employee in it is medical placement program. Therefore,
Complainant maintained that the Agency failed in its responsibility to
make an effort to place her on another job during the period of January
2004 through December 21, 2004. ROI, at Exhibits B-1, F-1, and F-8.
Notwithstanding Complainant’s assertions, the record establishes that
the Agency did attempt to accommodate Complainant. On March 15, 2002,
Complainant was offered limited duty as an Aircraft Mechanical Parts
Worker, WG-8840-07, and on April 18, 2002, Complainant was offered
a position as a Tools and Parts Attendant, WG-6904-06, both of which
she declined. The record establishes that through mid-November 2004,
Complainant was enrolled in vocational rehabilitation under the authority
of DOL. There is no evidence that the Agency was subsequently made
award of Complainant’s desire for reasonable accommodation until her
written request in early December 2004. We note that, as a general
rule, the individual with a disability must inform the employer that
an accommodation is needed. See Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, Question 40. ROI, at Exhibits F-14, F-15, F-16, and F-17.
With regard to the period of January 2004 through December 21, 2004,
the Chief explained that, when an employee is unable to work at all,
the OWCP uses the VRP to access an employee’s skill and place that
employee in a program that will result in the greatest benefit to the
employee and DOL. The Chief pointed out that, in Complainant’s case,
she chose a two-year training program to obtain a paralegal degree.
While Complainant completed her degree work during December 2003, she
remained under the VRP until her benefits were reduced by Complainant
on November 10, 2004. The Chief explained that the VRP was responsible
for the placement activities for Complainant as long as she was in
the program. The Chief emphasized that, after Complainant contacted
the Agency approximately on December 1 ,2004, action was taken to verify
her current physical restrictions and initiate job searches in the 76th
Maintenance Wing and base-wide. Additionally, although the Agency had
no authority to place Complainant in a position outside of Tinker AFB,
the Chief indicated that the Agency conducted an external job search using
the OPM web site to identify possible placements. ROI, at Exhibits F-5
and F-17.
In an effort to rebut the Chief’s testimony and support her allegation
of the lack of accommodation during the period of January 2004 through
December 21, 2004, Complainant argued that referral to a VRP does not
release the Agency from its responsibility to provide a reasonable
accommodation. We note that while an employer cannot substitute
vocational rehabilitation services in place of reasonable accommodation,
the American Disabilities Act (ADA) does not prohibit an employer and
employee from choosing vocational rehabilitation as an alternative to
accommodation, if both parties voluntarily agree that the VRP is referred.
See EEOC Enforcement Guidance: Workers’ Compensation and the ADA,
No. 915.002 (September 3, 1996). In Complainant’s case, the record
shows that she cooperated with the referral to the VRP, completed a
two year degree program, and acknowledged that she was not “adversely
harmed” by the referral. It should also be noted that, at the time of
the second offer of a light duty position on April 18, 2002, Complainant,
through her attorney, responded that, “We believe that when the Agency
failed to find suitable employment and the OWCP placed [Complainant] in
the VRP, this was her job until the Plan was completed.” Additionally,
Complainant obtained a new medical evaluation from her private physician
indicating that no work other than a “desk” job would be appropriate.
It is significant that, prior to Complainant’s solicitation of a revised
medical opinion, the OWCP had found the position offered on April 18,
2002, to be a valid job offer consistent with Complainant’s medical
restrictions. ROI, at Exhibits B-1 and F-24.
Complainant also argued that, during December 2004, it was not
appropriate for the Agency to ask for clarification of her medical
condition unless it had a valid offer to make to her. EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under the American
Disabilities Act, No. 915.002 (October 17, 2002) clarifies the rights and
responsibilities of employers and individuals with disabilities regarding
reasonable accommodation. Specifically, an employer may ask an employee
for documentation of his or her disability and functional limitations
when that employee requests reasonable accommodation. The employer is
entitled to know that the employee has a covered disability at the time
he or she requests reasonable accommodation.
In summary, we find that the evidence in the record establishes that,
subsequent to Complainant’s request for reasonable accommodation,
the Agency made efforts to accommodate Complainant, i.e., two previous
job offers, vocational rehabilitation, an organizational job search,
and a base-wide job search. However, no suitable vacant position for
which Complainant qualified was available at that time. ROI, at Exhibits
B-1 and F-5.
We find that the record clearly shows that the Agency reasonably
accommodated Complainant’s known medical restrictions. Thus, we
find Complainant did not establish that the Agency denied Complainant
a reasonable accommodation. Regarding the disparate treatment nature
of this claim, we find that the Agency articulated a nondiscriminatory
reason for its actions. Complainant has not shown that this reason
was a pretext for discrimination.
Regarding Complainant’s claim that, from November 28, 2004, through
January 6, 2005, Complainant’s immediate supervisor failed to process
the paperwork for her application for disability retirement, the Aircraft
Engine Repairer Supervisor acknowledged he had Complainant’s retirement
paperwork from late November 2004 until January 13, 2005, when he signed
and dated it. The Aircraft Engine Repairer Supervisor explained that,
during the “late part of November 2004,” he received a package
containing a Standard Form (SF) 78, Certification of Medical Examination.
The Aircraft Engine Repairer Supervisor said that the package contained a
note that he should call a Retirement Specialist in the Retirement Office
if he needed assistance. The Aircraft Engine Repairer Supervisor said
that he attempted to contact the Retirement Specialist because he had not
completed one of these documents before. The Aircraft Engine Repairer
Supervisor said that he also questioned whether he was the “appropriate
person” to complete the document because Complainant had never actually
worked for him. The Aircraft Engine Repairer Supervisor said that he
finally made contact with the Retirement Specialist in late December
2004, but did not submit the forms until January 13, 2005, because he
had to take his use or lose leave. ROI, at Exhibit F-2.
The Unit Chief confirmed that the Aircraft Engine Repairer Supervisor
had difficulty with Complainant’s retirement application because
the questions on the form pertained to the time when Complainant was
not working for him. The Unit Chief admitted that he knew Complainant
had been involved in litigation involving overtime, but thought it was
through the grievance procedure. The Unit Chief indicated that he did
not know the litigation was through the Equal Employment Office until
after the instant complaint was filed, and he looked into the matter.
The Unit Chief further confirmed that the main reason the Aircraft Engine
Repairer Supervisor took so long was because he wanted to do a good
job on the application instead of making a lot of “non applicable”
statements. The Unit Chief said the completion of the application was
further delayed because Complainant submitted it during the holiday
season when the Aircraft Engine Repairer Supervisor and those people
assisting him were on leave. ROI, at Exhibit F-3.
We find the Agency articulated legitimate, non-discriminatory reasons
for its actions. Upon review of the record, we find Complainant failed
to show that the Agency’s actions were a pretext for discrimination.
CONCLUSION
Accordingly, the Agency’s decision finding no discrimination is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 6, 2011
__________________
Date
2
0120090531
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090531