01A20571
10-27-2003
LaVenia E. Bell, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
LaVenia E. Bell v. Department of Transportation
01A20571
October 27, 2003
.
LaVenia E. Bell,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A20571
Agency Nos. 5-97-5078
5-97-5117
5-99-5053
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and 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.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Air Traffic Control Specialist at the agency's Corpus Christi Air
Traffic Control Tower, in Corpus Christi, Texas facility. In March 1995,
the agency withdrew the medical clearance of complainant due to her use of
Paxil for depression. Through the year 1996, complainant sought to have
her medical clearance reinstated. On December 3, 1996, complainant's
physician (P1) sent the agency a fax informing the agency's physician
(AP) that complainant was capable of part-time work. The AP responded
by explaining that he needed to know whether complainant was fit or not
fit for duty, not whether she was partially fit. On December 9, 1996, P1
informed the agency that complainant was fit for duty without limitations.
That same day, complainant was returned to work.
On December 12, 1996, complainant requested a reasonable accommodation
in the form of a part-time schedule. The request was accompanied by a
letter from P1 similar to her prior fax. Complainant later withdrew
her request for a part-time schedule. She noted that she could do
her normal duties and that the request from P1 was not mandatory.
A part-time schedule would be beneficial, but not absolute.
Since complainant had been away, she needed to be re-certified which
required training. On January 29, 1997, complainant requested that
her training on radar be limited to no more than one hour per day for
the first month of training. Her manager (Manager) requested medical
documentation in order to properly assess her request. P1 contacted the
Manager stating that information was forthcoming. On March 3, 1997,
P1 asked that complainant be placed in a part-time schedule. Then,
on April 16, 1997, P1 repeated her suggestion for a part-time schedule
and added that if that was not possible, complainant should be placed
in a less stressful staff, full-time position.
On April 22, 1997, complainant requested eighty hours of advanced sick
leave in order to allow her to be tested for various symptoms that
interfered with her air traffic duties. Complainant indicated that
she was experiencing headaches, chest pains, and stomach ailments that
have interfered with her air traffic duties. The agency granted that
request and the AP asked that the agency receive medical documentation
by May 10, 1997. Based on complainant's statement that her ailment was
interfering with her controller duties, the AP withdrew complainant's
medical certificate on April 24, 1997. On April 28, 1997, the Manager
formally denied complainant's request for a part-time schedule stating
that it would "amplif[y] the problem of sufficient personnel to conduct
air traffic services." The Manager indicated that complainant would lose
her speed and accuracy if she does not work all positions on a continuing
basis. The Manager also noted that complainant would not be provided
staff work. He noted that there was no Staff Specialist position
available and further she lacked the expertise for such a position.
In addition, the duties of the vacant position were being performed
by another individual. Accordingly, the Manager denied complainant's
request for a staff position.
On June 4, 1997, P1 wrote to the agency that complainant could perform
the full range of duties but still recommended a modified work schedule.
P1 then provided another note on June 9, 1997, stating that complainant's
symptoms were in remission and that she could return to full duties.
On June 11, 1997, complainant's new psychiatrist, P2, stated that
complainant could return to full air traffic control duties. Based on
P1 and P2's assessments, the AP found complainant medically qualified
to return to her position. Complainant returned to her duties on June
12, 1997.
In August 1997, a Support Specialist position was posted requiring �one
year of current FPL experience�. Due to complainant's condition, she
did not have one year of current experience. Complainant applied for
the initial posting of the Position. The Position posting was canceled
and it was re-posted without the "current" requirement. Complainant did
not re-apply for the Support Specialist position.
In February 1999, complainant provided a medical note from her physician
(P3) stating that she should not work more than eight hours per day.
Based on the note, the Manager removed her from the Credit Hour Program
(Program). On April 21, 1999, complainant provided a note dated April
13, 1999, stating that she could work on one of her days off for up to
eight hours. This note was written by a physician assistant at the Daily
Medical Center. The Manager asked for more clarification based upon
the apparent inconsistencies in complainant's medical documentation.
Complainant wanted the agency to provide specific questions to
present to her physician. The Manager indicated he would provide such
questions but was told that they would come from a regional office.
Complainant contacted the agency's Hotline where she was informed that
since there were two medical notes from different sources with differing
statements, clarification was needed. The Hotline sent complainant a
letter indicating specifically what complainant needed to provide the
agency in order to get reinstatement in to the Program. In addition,
the Manager sought a full comprehensive medical assessment. On April 27,
complainant provided that assessment. On April 29, 1999, the Manager,
based on the assessment, permitted complainant back into the Program.
Complainant filed three EEO complaints based on the events. In complaint
(1), complainant alleged that the agency discriminated against her on
the bases of race (Black), sex (female), disability (Major to Severe
Depression and Stress) and reprisal (prior EEO activity) when she was
not provided (a) a modified work schedule, (b) a modified training
schedule, or (c) a reassignment to another position. In complaint (2),
complainant alleged that the agency discriminated against her on the
bases of disability and reprisal when (d) on August 14, 1997, the agency
advertised a Support Specialist position and altered one requirement to
disqualify her. Finally, in complaint (3), complainant claimed that the
agency discriminated against her on the bases of disability and reprisal
when (e) her participation in the credit hour program was terminated and
(f) the agency failed to notify her of the list of questions needed for
her physician.
The complaints were separately investigated. At the conclusion of
the investigations, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge or an agency final decision.
Complainant requested that the agency issue its final decision.
The complaints were consolidated and a single FAD was issued. The FAD
determined that complainant did not establish that she was discriminated
against as alleged in the complaints. This appeal followed.
On appeal, complainant contends that the agency was aware of her
condition and that her physician requested a reasonable accommodation
in the form of a part-time schedule for her as early as December 1996.
She contradicts the agency's argument that it did not have employees
on a part-time schedule. Complainant argues that she should have been
reassigned to the position that was posted in August 1997, however, there
was no interactive process in relation to her requests for reasonable
accommodations. Finally, complainant contends that the agency drafted a
decision finding discrimination in her case. Complainant provided a copy
of the draft with comments from the agency with her appeal. The agency
requests that we affirm its FAD that it issued finding no discrimination.
ANALYSIS AND FINDINGS
Contentions on Appeal
As to the draft decision by the agency, it should be noted that it was
a draft and should not be used as the agency's decision in the matter.
Further, the draft's analysis of the disability claims confused the issues
of reasonable accommodation and disability-based disparate treatment.
Therefore, it cannot be relied up to support complainant's claims of
discrimination.
Disparate Treatment Based on Reprisal
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions as to complainant's claim
of disparate treatment due to her race, sex and prior EEO activity.
As to claim (a), complainant withdrew her request for a reassignment.
In claim (b), the Supervisor averred that complainant's request was
not denied in that the Manager told him to do what they could in
getting complainant trained for her re-certification. In claim (c),
the Manager indicated that there were no vacant positions to which
complainant could be reassigned. Complainant did not apply for the
Support Specialist position in claim (d) when the requirement was dropped
from the bid. As for claim (e), complainant's participation in the
Program was restricted based on medical documentation provided by P3.
Once complainant provided sufficient medical documentation to clarify
the situation, she was returned to the Program. Finally, as to claim
(f), the agency believed that complainant was given adequate guidance
from her call to the Hotline as to what was required of her physician
regarding her requests for reasonable accommodation.
Finding that the agency has provided legitimate, nondiscriminatory reasons
for its actions, complainant must show that the agency's reasons are
pretext for discrimination. Upon review, complainant failed to provide
any such evidence. Therefore, the record does not establish that the
agency's actions were discriminatory based on her sex, race, or prior
EEO activity.
Disability-Based Discrimination
Complainant also alleged that the agency violated the Rehabilitation Act
by discriminating against her on the basis of her disability (claims
(d)-(f)) and by failing to provide her with reasonable accommodations
(claims (a)-(c)). For purposes of analysis, it is assumed that
complainant is an individual with a disability.
Disparate Treatment
In claim (d), complainant argued that the Support Specialist position was
posted with an extra requirement in order to disqualify her from obtaining
that position. The record indicates that the position in question
was initially advertised on August 4, 1997. The position included a
requirement of one year current "FPL" experience. Complainant had FPL
experience but it was not current due to her condition. The Manager
averred that he drafted the bid based upon bids he had drafted in the
past for the New England and Eastern Regions. The record shows that
the Support Specialist was canceled because it had been advertised as a
permanent position. The agency determined that the position should have
been announced as a temporary position. Accordingly, the vacancy was
canceled and re-advertised in October 1997. At that time, complainant
did not apply for the position. Since complainant failed to apply when
the position in question when it was re-posted, she was not considered
for it. Upon review, we find, as to claim (d), that the agency did not
discriminate against complainant based on her disability.
As to claims (e) and (f), the record indicates that P3 limited complainant
from working more than eight hours per day. Based on all the medical
documentation complainant has presented, the agency determined that she
was ineligible for the Program. Complainant provided further medical
documentation, not from P3, which confused the situation. In (f),
complainant sought guidance as to what she needed to provide the agency
to become eligible for the Program. The agency officials determined
that the Hotline adequately stated what complainant needed to provide,
therefore, it did not provide separate questions for complainant's
physician. Further, the Manager asked for a medical assessment in order
to determine if complainant could return to the Program.
When complainant provided such an assessment by a physician (P4)
indicating that she could work on one of her days off, the Manager
returned complainant to the Program. Therefore, the agency did remove
complainant from the Program pursuant to the medical documentation
she provided. The agency appropriately reinstated her into the Program
once complainant provided sufficient medical documentation clarifying
her situation. Therefore, the record supports the agency's removal of
complainant from the Program and subsequent reinstatement. The record
also shows that the Manager did not provide complainant with questions for
her physician based on the Hotline's thorough response to her inquiry.
Accordingly, the Commission finds that the agency did not violate the
Rehabilitation Act.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9.
As noted above, for purposes of analysis, it is assumed that complainant
is an individual with a disability.
As to claim (a), the record indicates that P1's notes did not require
that complainant be placed on a part-time schedule. Therefore, the
P1's medical documentation did not support the need for the requested
reasonable accommodation. Furthermore, complainant withdrew her
request for a part-time schedule. As to the training issue in claim
(b), complainant failed to provide any medical documentation supporting
her request for only one hour of training per day.
In claim (c), complainant alleged that she was not provided a
reassignment. Complainant claimed that there was one vacant position to
which she could have been reassigned, namely as a Plan and Procedures
Specialist. She stated that the position was advertised from February
1997 through March 1997. She noted that she did not apply for the
position. The agency indicated that the Plan and Procedures position
was not filled because the duties of the position were spread across
to various individuals like the Manager. Therefore, complainant has
not shown that the Plan and Procedures position was available for a
reassignment.
Complainant also contended that she should have been assigned to the
Support Specialist position raised in claim (d). We note that the agency
was aware of complainant's request for a reassignment in April 1997.
In essence, complainant argued that the agency should have provided her
with the Support Specialist position as a reasonable accommodation rather
than having the position posted for bidding in August and October 1997.
The record indicates that complainant was on extended leave beginning
April 22, 1997. She returned in June 1997 with two notes from her
physicians (P1 and P2) indicating that her condition was in remission
and that she could return to full air traffic control duties. Therefore,
we find that complainant revoked her request for a reassignment through
the notes from P1 and P2 in June 1997. Furthermore, complainant did
not provide any medical documentation from June through October 1997
indicating that she required a reassignment when the Support Specialist
position became available. Hence, we find that the agency was not
obligated to provide complainant with a reassignment to the Support
Specialist position prior to the posting of the vacancy announcement.
Accordingly, the Commission concludes that complainant has not established
that the agency violated the Rehabilitation Act.
CONCLUSION
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.
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 27, 2003
__________________
Date