0120061921
12-12-2008
Marilyn A. Cramer, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Marilyn A. Cramer,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01200619211
Hearing No. 220-2005-00104X
Agency No. A-04-60-1005
DECISION
Complainant filed an appeal from the agency's final action dated December
29, 2005, finding no discrimination with regard to her complaint. In her
complaint, complainant, an Assistant United States Attorney assigned
to United States Attorney's Office for the Northern District of Ohio,
alleged discrimination based on disability (sleep apnea, restless leg
syndrome, narcolepsy and circadian rhythm disorder) and in reprisal for
prior EEO activity when:
(1) She was denied leave and placed on absent without leave (AWOL)
status on October 1, 2003;
(2) She was denied her request for leave and was placed on AWOL status
on November 4, 2003, January 16 and 24, 2004, February 5, 2004, April 5,
8, and 14, 2004, May 11 and 14, 2004, and June 9, 2004;
(3) On November 24 and 25, 2003, the agency failed to accommodate her
disabilities and placed in her personnel file a letter assigning her to
leave restriction;
(4) On April 29, 2004, for the 2003 rating period she was rated
unsatisfactory on two job elements and placed the appraisal in her file;
and
(5) The agency subjected her to a hostile work environment by:
(a) Prohibiting her from using or seeking to use accrued leave in the
morning; requiring her to schedule all leave, including sick leave,
at least two days in advance; and automatically putting her on AWOL if
she arrived past pre-set starting time;
(b) Requiring her to leave her door open at all times;
(c) Making punitive case assignments and delaying the routing and
approval of time-sensitive work causing her to remain at work longer
than necessary;
(d) Denying her voting leave on November 4, 2003;
(e) Placing her on a Performance Improvement Plan (PIP) effective June 9,
2004, which required mandatory twice weekly meetings with supervisors
and by placing the PIP in her personnel file; and
(f) Delaying until May 14, 2004, to respond formally to her reasonable
accommodation request, misrepresenting her request, and denying it.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On November
21, 2005, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged incidents.
The AJ initially noted that complainant previously submitted a July
31, 2002 prescription pad note to the agency indicating that she had
restrictions on driving. Complainant also submitted a December 3, 2002
note from her doctor indicating that she had an undiagnosed disorder
which led to daytime sleepiness and that she should not drive a motor
vehicle and would benefit from a flexible work schedule. In an April 2003
doctor's note, the doctor indicated that complainant had a complicated
dual diagnosis of obstructive sleep apnea syndrome and period limb
movements of sleep. The doctor recommended that complainant take her
time awakening and when necessary extend her sleep time in the morning.
With regard to claim (1), the agency stated that at the time of the
alleged incident, complainant arrived to work late with no excuse.
Thus, she was placed on AWOL status.
With regard to claims (2) and (5)(d), the agency stated that at the
time of the alleged incidents, complainant again arrived to work late
without any valid justification. Complainant claimed that she was 15
minutes late on November 4, 2003, because she had to vote. The agency
stated that if employees did not have adequate time to vote, they were
allowed to take administrative leave for three hours after the polls
open or three hours before the polls close to get to the polls to vote.
Thus, if the polls open at 6:30 am, the employee should be in the office
by 9:30 am. The agency stated that since at the time of the alleged
incident, complainant was permitted to come to work at 10:00 am, she
would not be entitled to any administrative leave for voting.
With regard to claims (3) and (5)(a), the agency stated that complainant
was placed on leave restrictions due to her failure on four occasions
to arrive at work on or before 10 am as agreed to according to her prior
modified schedule. Complainant was also informed to adhere to the leave
policy under the agency's policy and asked to provide additional medical
documentation concerning her disability.
With regard to claim (4), the agency stated that complainant received
the identified appraisal because she failed to meet deadlines set at
file reviews for cases to be charged and failed to submit timely and
accurate monthly reports to her management.
With regard to claim (5)(b), complainant was asked to keep her office
door open in order to eliminate the possible perception that she was
not working as hard as her colleagues. The AJ stated that complainant
disregarded this request but she, nevertheless, was not disciplined as
a result.
With regard to claim (5)(c), the AJ stated that complainant failed to
provide any evidence to support her claim other than her own assertion.
With regard to claim (5)(e), the agency stated that complainant was
placed on the alleged PIP due to her performance deficiencies during
the rating cycle of 2003.
With regard to claim (5)(f), complainant requested that she not be
required to drive more than 15 to 20 minutes for work and that someone
be available to drive her as necessary to attend meetings and hearings.
Complainant also requested that she arrive to work at the time of her
choosing or after 10:00 am as an accommodation. The agency stated that
since September 4, 2003, as accommodations, complainant was excused from
the driving requirement that applied to the other attorneys in her unit.
She was also permitted to arrive at work anytime before 10:00 am.
The agency stated that the essential functions of complainant's job
required her availability for case assignments and court which generally
closed around 4:00 pm. The agency further stated that as a federal
prosecutor in a reactive unit, complainant's case assignments might come
on an unpredictable basis to be assigned among the attorneys available
in the office.
The AJ determined, and we agree, that complainant was not entitled to
her requested accommodations, i.e., a driver and a schedule allowing
her to report to work at anytime of her choosing after 10:00 am.
On appeal, complainant maintains that she was entitled to a flexible
starting time. The record indicates that the agency clearly provided
her with a flexible starting time as long as she reported to work by
10:00 am. There is no evidence why complainant's reporting time after
10:00 am would accommodate her medical conditions any better than before
10:00 am. Complainant contends that many attorneys were permitted to
deviate from the regular hours of 9:00 am to 5:30 by working from 8:00 am
to 4:30 pm. However, the record clearly indicates that complainant was
in fact permitted to deviate from the regular hours as well. In fact,
complainant did not want the 8:00 am starting time as those attorneys.
It is noted that complainant does not identify any employee who was
allowed to start working after 10:00 am.
On appeal, complainant also contends that the agency granted flexible
scheduling to her supervisor's "gym rats." However, there is no evidence
that those employees were allowed to start working after 10:00 am.
Upon review, the Commission agrees with the AJ that complainant failed to
rebut the agency's legitimate, nondiscriminatory reasons for the alleged
incidents. The AJ further determined, and we agree, that when considering
the claims as a whole, they were not so pervasive as to constitute
harassment. In this decision, we do not decide whether complainant
was a qualified individual with a disability within the meaning of the
Rehabilitation Act. We do find, however, that the agency reasonably
accommodated complainant's claimed disabilities. The AJ stated, and
we agree, that complainant was not entitled to an accommodation of
her choice. Complainant has not shown that her being allowed a work
schedule with a reporting time after 10:00 am was necessary due to her
claimed disabilities. Furthermore, complainant has not shown how any
agency action in the complaint was motivated by discrimination.
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
12/12/2008
__________________
Date
1This case has been redesignated with the above-referenced appeal number.
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0120061921
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036