01a54723
12-22-2005
Robyn D. Brandon, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Robyn D. Brandon v. Department of Homeland Security
01A54723
December 22, 2005
.
Robyn D. Brandon,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A54723
Agency No. DOT2-03-2029/ HS05-0689
Hearing No. 100-2004-00583X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of 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.
For the following reasons, the Commission affirms the agency's final
order.
ISSUE PRESENTED
Whether the Administrative Judge's decision to issue a decision without
a hearing in favor of the agency was correct.
Background
The record reveals that complainant, a Secretary at the agency's Federal
Air Marshall Service in McLean Virginia, filed a formal EEO complaint on
January 6, 2003. She alleged that the agency discriminated against her
on the basis of her disability (impairment: de Quervain's tenosynovitis
left wrist and hand) when she was given a leave restriction letter on
October 4, 2002 and when she was placed in Absent Without Leave (AWOL)
status in October 2002.<1>
According to the record, the parties were ordered to submit pre-hearing
statements prior to a scheduled hearing. The Administrative Judge
informed the parties that their pre-hearing statements would be
considered as the agency's motion for summary judgment and the
complainant's opposition thereto. Based on the parties' submissions,
the AJ concluded that complainant's pre-hearing statement accurately
set forth the undisputed facts and that since adequate discovery had
been done, issuing a decision without a hearing was appropriate.
The AJ concluded that even when viewing the evidence in the light most
favorable to complainant she failed to establish a prima facie case of
discrimination based on a disability. More specifically, he found that
complainant did not demonstrate the condition of her hand and wrist caused
her to be substantially limited in a major life activity. He found that
complainant's doctor gave the opinion that she was unable to type more
than 30 minutes at a time which was insufficient. The AJ further found
that neither of complainant's physicians gave an adequate description
of her physical condition from which it could be determined whether she
was disabled. Even though one of complainant's physicians stated she
could not use her hand for gainful employment and that she was unable to
work, this did not mean she was unable to work a broad class of jobs.
Finally, the AJ found that the agency did not regard complainant as
disabled simply from evidence that the agency attempted to provide her
with a reasonable accommodation according to her doctor's recommendation.
Based on these conclusions, the AJ found no discrimination based on
a disability. The agency's final order implemented the AJ's decision.
On appeal, complainant argues that there is a genuine issue of material
fact in dispute as to whether she is an individual with a disability.
She submits an affidavit outlining the ways in which she is limited by her
hand and wrist conditions. Complainant argues that the issue of whether
she is disabled is an issue of fact and that therefore the issuance of
a decision without a hearing was not appropriate. The agency opposed
complainant's appeal arguing that the AJ's decision was correct.
ANALYSIS AND FINDINGS
Our review on appeal is as follows. 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 in dispute. 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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
The medical evidence reflects that complainant provided a statement
which indicated she had a �complaint of left wrist and hand pain...� and
she was diagnosed with de Quervain's tenosynovitis. The doctor stated
that complainant should �limit her typing as much as possible.� Other
documentation indicated that complainant took leave from May 23, 2002 to
June 4, 2002 related to her medical condition. A later note written by
her physician contained the notation �wrist� �totally incapacitated�
�8/19/02 to 8/22/02.� Subsequently, complainant submitted another
doctor's note which stated, �CTS,� �totally incapacitated from 8/22/02
to 9/16/02.� Complainant then did not attempt to return to work but
remained on extended leave until July 8, 2003 when she authored a letter
to her supervisor indicating her intention to return.
Complainant's manager stated that complainant consistently took
unscheduled leave after she injured her wrist and did not provide
adequate medical documentation. The agency's leave policy required
that employees provide medical documentation if they took more than
3 days of consecutive sick leave. For the period in question which
began with 4 days in August and extended until October, complainant's
documentation which merely indicated �wrist� �totally incapacitated� was
not adequate. On receiving a letter from her second level supervisor (S)
requesting more documentation, there is no indication that complainant
sent additional documentation or discussed her condition with the agency.
Rather, according to complainant, she questioned that S was entitled to
know any details about her medical condition.<2>
For purposes of our analysis, we will assume that complainant is an
individual with a disability as defined by the Rehabilitation Act.<3>
Even assuming that complainant is an individual with a disability, the
Commission concludes that complainant failed to establish a prima facie
case of disability discrimination because no reasonable fact finder could
draw an inference of discrimination regarding the leave restriction
and placement in AWOL status. In reaching this conclusion, we find
that complainant admitted that she did not report to work, she refused
to respond to S's reasonable request for more medical documentation to
substantiate her �total incapacitation,� she presented no evidence that
a similarly situated �non-disabled� employee was treated more favorably
under similar circumstances, and she failed to show that the agency's
discipline was inconsistent with its leave policies.
To the extent that we can construe complainant's claim as a denial of
accommodation claim and viewing the evidence in the light most favorable
to complainant, the record reflects that complainant did not engage in the
interactive process during the relevant time period and instead absented
herself from the workplace. The record also discloses that the agency
attempted to accommodate what it did know about her condition by providing
her with typing support. Even knowing that others were available to
support her typing function, complainant failed to report to work.
Thus we decline to find the agency liable for denying complainant
reasonable accommodation.
Based on the foregoing, the Commission finds that even construing the
evidence in the light most favorable to complainant, there are no genuine
issues of material fact in dispute. We conclude that the issuance of a
decision without a hearing was appropriate, and we affirm the agency's
final order.
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
December 22, 2005
__________________
Date
1The record indicates that complainant withdrew
the basis of reprisal.
2Complainant stated in her unsigned affidavit that S was not her
supervisor but later acknowledged that she met S before she began the
extended leave period.
3 Generally, complainant must establish that she is a �qualified
individual with a disability� in order to gain coverage of the
Rehabilitation Act. An �individual with disability� is a person who
has, has a record of, or is regarded as having a physical or mental
impairment which substantially limits one or more of that person's major
life activities, i.e., caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
See, 29 C.F.R. � 1630.2(j).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner, or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform a major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id.