01972251
02-02-2000
Marian D. Rollins, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Marian D. Rollins v. Social Security Administration
01972251
February 2, 2000
.
Marian D. Rollins,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01972251
Agency No. 960068
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of age (46), and physical disability (insulin dependent diabetes
and cardiac disorder), in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791, et seq.<1>
Complainant alleges she was discriminated against when she was not
selected for a competitive promotion to the position of GS-10 Insurance
Claims Examiner (Position) on October 6, 1995. The appeal is accepted in
accordance with EEOC Order No. 960.001. For the reasons discussed herein,
the agency's decision is VACATED and REMANDED in accordance with the
following ORDER, and the applicable EEOC Regulations.
During the relevant time, complainant was employed as a GS-9 Benefit
Authorizer at the agency's Kansas City, Missouri office. She applied for
the Position under vacancy announcement No. 188-95, which advertised
three openings, and was one of twelve candidates placed on the Best
Qualified List (BQL). The office was organized by sections, and each
section supervisor was asked to ranked those candidates in their
section who appeared on the BQL. The ranking was then discussed with
the Manager of the sections (M), who communicated the rankings and
supervisor comments to the Selecting Official (SO) who was responsible
for the ultimate selections. The Office Director, the Concurring Official
(CO), approved all three of SO's selections. Two candidates from Section
2 were selected with section rankings of 2 and 3 respectively, and a
candidate from complainant's section, Section 6, whose section ranking
is not disclosed, was also selected. All of the selectees were under
the age of 40 and none of them had a disability.
According to the record, when complainant learned of her non-selection,
she asked her supervisor (S) about her ranking, and was told she ranked
"highly." When complainant then queried M, he informed her that her
ranking was not high enough to warrant her selection for the Position,
and that the lower ranking was primarily the consequence of her excessive
use of leave which diminished her dependability, an important factor in
the selection. M stated that he merely passed along S's recommendations
to SO, and offered no input of his own. SO testified that she relied
heavily on the section rankings in her decision, and stated that she
did not consider leave usage per se, but did consider dependability as
an important factor.
S, M, SO, and CO all testified that they had no knowledge of
complainant's claimed disabilities, with S indicating that she was
aware that complainant had a heart attack in 1993, but that she did
not appear to suffer from any residual illness as a consequence. S and
M both testified that they were unaware that complainant's leave usage
was related to a disability. Complainant argues that she has worked in
the same office with these officials for nearly twenty years and that
they are all aware of her disabilities. She testifies that at least some
of them have observed her at her desk performing glucose testing for
her diabetes. She further states that she documents her leave requests
with physician verifications reflecting these disabilities so that these
officials know, in fact, that she is disabled.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on December 6,
1995. At the conclusion of the investigation, complainant was issued a
FAD, finding no discrimination.
In its FAD, the agency did not address whether or not complainant
established a prima facie case of age or disability discrimination;
instead, it concluded that the agency articulated a legitimate
non-discriminatory reason for its selection which was not
pretextual. Specifically, the FAD found that the agency selected
only those candidates which ranked 1 or 2 in their section, and
that complainant was properly ranked lower because of her "reduced"
dependability as a result of high leave usage and her need to be more
tactful.
On appeal, complainant repeats her contention that all of the involved
management officials were well aware of her disabilities and that all of
her leave was requested and approved by management. The agency requests
that we affirm its FAD.
By regulation, the federal government is charged with becoming
"a model employer" of individuals with disabilities. This goal was
expressed by Congress when it enacted the Rehabilitation Act. 2 Bradley
v. U.S. Postal Service, EEOC Appeal No. 01962747 (October 22, 1998)
(citing Gardner v. Morris, 752 F.2d 1271 (8th Cir. 1985); Prewitt, 662
F.2d at 301.) Federal agencies must make reasonable accommodation for the
known physical and mental limitations of a qualified disabled employee,
unless the agency can demonstrate that accommodation would prove to be an
"undue hardship." See 29 C.F.R. 1630.2(o) and (p).
To establish a prima facie case of disability discrimination,
complainant must first establish that she is an "individual with a
disability." An "individual with a disability" is defined as one who
(1) has a physical or mental impairment that substantially limits one or
more major life activities, (2) has a record of such impairment, or (3)
is regarded as having such an impairment. 29 C.F.R. 1630.2. Major life
activities include activities such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. 29 C.F.R. 1630.2(i). The factors which the Commission
recognizes as determining whether an impairment substantially limits a
major life activity include the duration of the impairment, the severity
of the impairment, and its permanent or long-term impact. See Minehan
v. Department of the Army, EEOC Petition No. 03970092 (November 12,
1997); Terrangnoli v. Department of the Army, EEOC Appeal No. 01942810
(October 2, 1995). Moreover, since the time the agency issued its FAD,
the Supreme Court has held that the determination of whether a person has
a "disability" must be based on his or her actual condition at the time
of the alleged discrimination, and therefore must take into consideration
whether the person is substantially limited in a major life activity when
using a mitigating measure, if any, such as medication. Sutton v. United
Airlines, Inc., 119 S. Ct. 2139 (1999); Murphy v. United Parcel Service,
Inc., 119 S.Ct. 2133 (1999).
Exclusive of complainant's own testimony, our review of the record reveals
that it is devoid of any evidence, medical or otherwise, describing
complainant's claimed disabilities. Accordingly, with reference to the
law and regulations cited above, we find that the record of evidence is
insufficient upon which to base the instant determination. Therefore,
the agency must conduct a supplemental investigation as described in
the ORDER below.
ORDER
1) The investigator must contact complainant and request that she submit
pertinent medical documentation which provides a clinical diagnosis of her
claimed disabilities and verifies the type of impairment she suffered as a
consequence of these disabilities at the time this matter arose. Ideally,
this documentation should include the following: physician(s) opinion(s)
assessing complainant's diabetes and cardiac disorder during the 1993-1995
period; 1993-1995 medical examination reports, including the results
of any testing; and a list of medications, including dosages and any
side-effects experienced by complainant, prescribed during the 1993-1995
period.
In addition to this medical documentation, complainant should also submit
a sworn statement describing in detail the limitations she experienced
as the result of her diabetes and cardiac conditions during this period,
including an assessment of the effectiveness of medications or any other
mitigating measures she may have used to control her symptoms.
2) The investigator should obtain copies of complainant's 1995 requests
for leave, including physician certifications. If the agency no longer
retains these, complainant should be contacted for her own copies. Should
these be unavailable, complainant's physicians should be contacted and
asked to submit copies of the certifications requested from them by
complainant.
3) Complainant testifies that over the years she has been observed
at her desk performing glucose testing. Complainant's supervisors
and co-workers during the 1993-1995 period should be contacted and
asked whether they witnessed complainant as she claims. Complainant's
co-workers and supervisors should also be asked whether they were aware
of complainant's disabilities, and if so, to provide an explanation
including a statement of whether they knew, or assumed, that her leave
was related to the claimed disabilities.
4) This supplemental investigation must be fully completed within sixty
(60) calendar days of the date this decision becomes final. Thereafter,
the agency will provide the complainant, within thirty (30) calendar
days from the date the agency completes the supplemental investigation,
an opportunity to respond to the supplemental investigative report. The
agency shall then take any action appropriate and consistent with
complainant's response, and issue a new final agency decision within
thirty (30) calendar days of complainant's response or, if complainant
fails to respond, within thirty (30) calendar days following the last
day complainant would have been permitted to respond. Copies of the
completed supplemental investigation and new final agency decision must
be submitted to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report
shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has
the right to file a civil action to enforce compliance with the
Commission's order prior to or following an administrative petition
for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408)
and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action." 29
C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or a
civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil action,
you have the right to file such action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that
you receive this decision. In the alternative, you may file a civil
action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action win 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
February 2, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.