LaVenia E. Bell, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01A20571 (E.E.O.C. Oct. 27, 2003)

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