0120071158
05-06-2009
Lu-Ann Wulff, Complainant, v. Dr. Steven Chu, Secretary, Department of Energy, Agency.
Lu-Ann Wulff,
Complainant,
v.
Dr. Steven Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120071158
Hearing No. 350-2005-00216X
Agency No. 05-0001-AL
DECISION
On December 28, 2006, complainant filed an appeal from the agency's
final action concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Personnel Security Specialist in the Adjudication Team,
Personnel Security Division, at the agency's National Nuclear Security
Administration Service Center located in Albuquerque, New Mexico.
Complainant first notified the agency of her request for reasonable
accommodation for her knee and stomach conditions beginning on August
18, 2004. Complainant had knee surgery on October 21, 2004. Complainant
was on leave from September 15, 2004, through November 14, 2004, as a
result of pre-surgery and post-surgery instructions from her doctor.
Complainant's first day back to work following her surgery was November
15, 2004.
Complainant filed an EEO complaint on October 18, 2004, alleging she
was subjected to discrimination. In its acceptance letter, the agency
accepted complainant's complaint that she was discriminated against on
the bases of disability (degenerative joint disease and irritable bowel
syndrome) when:
1. Complainant's request to be reassigned to another supervisor as part
of a reasonable accommodation was denied on August 20, 2004;
2. Complainant was given additional work assignments on August 26, 2004;
3. Complainant's request for overtime was denied on September 10, 2004;
4. Complainant's reasonable accommodation request to be relocated to
another office space was denied on September 14, 2004; and
5. Complainant's reasonable accommodation request to telecommute from
home was denied on September 16, 2004.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Thereafter, the agency submitted a Motion and
Memorandum of Law in Support of Summary Judgment on February 3, 2006.
Complainant failed to respond to the agency's motion. The AJ assigned
to the case granted the agency's motion for a decision without a hearing
and issued a decision without a hearing on October 18, 2006, finding
complainant was not subjected to discrimination based on her disability.
When the agency failed to issue a final order within forty days of receipt
of the AJ's decision, the AJ's decision finding that complainant failed
to prove that she was subjected to discrimination as alleged became the
agency's final action pursuant to 29 C.F.R. � 1614.109(i).
On appeal, complainant states that her complaint was not only based on
her disability, but it was also "for retaliation for not being treated
equally as the other employees in my organization to include contractors."
Complainant claims that if her witnesses had been interviewed they
would have provided proof her complaint is legitimate. Complainant
states that the office she occupied on the third floor was too small.
Complainant claims that others were allowed to work at home since 2001.
Complainant states that her disability is not temporary. She states
that she has numerous documents to prove that there was retaliation and
harassment against her and states she would have provided documentation
if requested.
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
Upon review, we find the AJ's grant of summary judgment in this case
was appropriate. Assuming complainant is a qualified individual
with a disability, we find she failed to show that she was denied
the reasonable accommodation of being assigned to another supervisor.
The record reveals complainant submitted an August 18, 2004 letter from
her doctor noting that he was treating complainant for stomach and bowel
problems related to stress on the job and right knee pain causing her
to be unable to stand for any length of time. Her doctor requested the
agency "consider moving her out of her division to a less stressful area."
The doctor noted complainant was "unable to do the stressful work because
of the aggravation of her colitis." Complainant met with the Manager,
Personnel Security Division, (Manager 1) to discuss her health problems
and problems complainant was having with her supervisor. On August 20,
2004, the agency sent complainant a memorandum requesting additional
medical documentation to assist in providing a decision about her
request to be moved to a less stressful division. Complainant did
not provide further medical documentation in support of her request.
Upon review, we find no nexus between complainant's claimed disability
and the requested accommodation of moving to a less stressful division.
The Commission finds complainant failed to show that she was discriminated
against based on her disability when she was given additional work
assignments on August 26, 2004. The record reveals that as a result of
her knee impairment complainant requested in August 2004, not to travel.
As a result, the agency excused complainant from traveling to Kansas City
and gave her the identified assignments in lieu of travel. Complainant
failed to show that the agency's legitimate, non-discriminatory reason
for its actions was a pretext for discrimination.
The agency denied complainant's request to work overtime on September
10, 2004. Complainant's supervisor explained the request was denied
based on several factors including that complainant needed additional
mentoring and her past performance. Complainant's supervisor determined
overtime was not needed during this period and denied overtime to other
individuals under her supervision during the same period. We find
complainant failed to show that the agency's actions were motivated by
discriminatory animus.
The record reveals that on August 26, 2004, complainant wrote to Manager
1 expressing concerns about the distance from her desk to her work files
and the accessibility of her work area on the third floor. Manager 1
met with complainant on September 2, 2004, to discuss her concerns.
Complainant was out of the office on sick leave from September 15,
2004, through November 14, 2004. On September 23, 2004, the agency
sent complainant a letter to her home noting that "[a]ll office
spaces are configured to be ADA accessible," but offering to either
have complainant's personally owned refrigerator "removed to open up
the entrance to [her] work area" or to "move [her] to a hallway office
where access would be easier." On November 16, 2004, complainant wrote
a letter to Manager 1 stating that on her first day back to the office
following her knee surgery, she has been constantly using her knee to
do unpacking and setting up her new office which caused "a great deal of
stress and strain on [her] knee." Complainant also included a November
12, 2004 letter from her doctor stating that as she recovers from her
right knee surgery, she will have trouble with "prolonged standing,"
"trouble with a significant amount of walking," and "will not be able
to do much climbing." The agency responded to complainant's letter
offering to assist "with the extended walking to conduct interviews
on and off the base." We note the record reveals that complainant's
office was moved from the third to the first floor as a result of the
reorganization that occurred prior to complainant's return to the office.
Further, we note the record reveals that complainant's supervisor arranged
for her coworkers to assist her in meeting interviewees and arranged for
complainant to have local interviews rather than require her to travel.
Therefore, we find complainant failed to show that she was denied a
reasonable accommodation. Moreover, there is no evidence complainant
was forced to work beyond her medical restrictions.
Complainant also alleged that she was subjected to discrimination when
her request to telecommute from home for several weeks was denied on
September 16, 2004. Complainant failed to produce medical evidence
showing that she needed to telecommute as an accommodation for her
claimed disabilities. Complainant has not shown that working outside
of her home was violating her medical restrictions. The agency further
states that complainant's request to telecommute was denied due to the
confidential nature of complainant's work files. We note that the record
reveals that while another employee was allowed to telecommute for a
short period of time in the past, the type of work that the employee was
doing was not adjudicatory in nature, but involved training and program
information work and did not involve the privacy concerns as did the
work that complainant was performing.
Complainant's complaint also included additional allegations surrounding
actions allegedly taken by complainant's first line supervisor and a
claim that her second line supervisor discriminated against her when
she requested medical documentation to support complainant's request
for reasonable accommodation. On March 3, 2005, the agency issued a
decision dismissing these additional issues. There is no indication in
the record that complainant challenged the dismissal of these additional
issues with the AJ or raised the matter in the instant appeal. Therefore,
we will not address these issues in this decision.
With regard to complainant's claim that she also raised a claim
of discrimination based on reprisal, we note that complainant did
indicate on her complaint form that she was alleging discrimination
based on reprisal. However, we note complainant failed to allege on what
protected activity she was basing her complaint. Moreover, we note in
a May 10, 2005 electronic mail message to the investigator, complainant
acknowledged that she had never filed an EEO complaint prior to the
current one, had never been a witness in someone else's EEO complaint,
and had never participated in any EEO related activity. Accordingly,
we find complainant's claim of reprisal is properly dismissed for failure
to state a claim pursuant to 29 C.F.R. �1614.107(a)(1).
Accordingly, the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 6, 2009
__________________
Date
2
0120071158
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120071158