0120063489
12-12-2008
Martina J. Bynum, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Martina J. Bynum,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200634891
Hearing No. 120-2005-00459X
Agency No. 04-62152-003
DECISION
Complainant filed an appeal from the agency's final action dated May 8,
2006, finding no discrimination with regard to her complaint. In her
complaint of August 2, 2004, complainant alleged discrimination based on
disability (major depression) when: (1) from November 30, 2003 to March
3, 2004, she was denied her requests for reassignment as a reasonable
accommodation; and, (2) on March 22, 2004, she was terminated from her
NF-235-3 Manager position because of prolonged absence due to extended
disability.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On March
31, 2006, 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. The AJ noted that prior
to the alleged incidents, complainant's former position as a computer
specialist was eliminated due to an agency RIF action. Effective July 6,
2003, complainant had been employed as an Employee Development Customer
Service Manager at the agency's Navy Exchange. The AJ indicated that
the essential functions of complainant's position were to manage and
supervise the hourly employees in Customer Service, to supervise the
hourly employees in the front line cashier operation, and to provide
training such as register training as required. Complainant did not
report for work on November 21, 2003, or thereafter.
The agency stated that since November 21, 2003, complainant submitted
medical documentation asking for leave, but never returned to work.
On January 16, 2004, the agency issued her a proposed termination
due to her unavailability for work. On January 27, 2004, complainant
requested a reasonable accommodation by reassignment from her position
to a different location/position. In response, the agency requested
that complainant provide additional medical documentation including
her specific limitations in order to determine availability of a
suitable position. Complainant failed to do so and she was terminated
on March 22, 2004. We agree with the AJ that "complainant did ask for
an accommodation, but she never explained what her limitations were, so
there was no way the [a]gency could have accommodated her." Furthermore,
we agree with the AJ that complainant "never showed a nexus that made it
clear what kind of accommodation the [a]gency could provide her, and she
never showed that she was able to return to work once she was provided
that accommodation. There is no way to look at this documentation other
than to say [c]omplainant was unavailable for work and could not have
returned to work."
We do not determine in this decision whether complainant was a qualified
individual with a disability. We find that complainant never demonstrated
to the agency that she needed a particular type of accommodation.
Furthermore, complainant failed to show that any agency action was
motivated by discrimination or that any similarly situated persons were
treated differently.
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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0120063489
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036