01A15034
11-19-2002
Sandra Stolbach, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Sandra Stolbach v. Department of the Treasury
01A15034
November 19, 2002
.
Sandra Stolbach,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A15034
Agency No. TD 00-2271
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her 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 for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Secretary in the agency's South Florida District, assigned to the
Disclosure Office of the Examination Division. Complainant sought EEO
counseling and subsequently filed a formal complaint alleging that she
was discriminated against on the basis of disability when in March 2000,
she was suspended for two days without pay due to her unapproved use of
credit time and her failure to timely complete an assignment. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. After initially requesting
a hearing, complainant withdrew her request and asked that the agency
issue a final decision.
In its final decision, the agency concluded that complainant, who alleged
that she suffered from memory loss, a symptom of fibromyalgia, was not
an individual with a disability. Assuming arguendo that complainant was
an individual with a disability within the meaning of the Rehabilitation
Act, we find that complainant attested that the reason she had to use
credit time and failed to complete her assignment in a timely manner
was because she had too much work to do and miscalculated the time she
would need to finish the assignment. Complainant did not represent that
her memory loss was linked to her having too much work and failing to
correctly estimate the time the assignment would require. We therefore
conclude that complainant failed to establish, by a preponderance of
the evidence, the requisite nexus between her alleged memory loss and
the conduct which gave rise to the suspension. We further conclude,
in response to complainant's claims that she was treated less favorably
than two other individuals in her office in regard to credit time,
that complainant failed to set forth sufficient evidence from which
a reasonable fact finder could infer discriminatory animus based
on disability. See Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th
Cir. 2001). In reaching this conclusion, we find that complainant,
a GS-05 Secretary, was not similarly situated to the GS-11 Disclosure
Specialist or the GS-07 Disclosure Assistant with whom she worked because
they were of different grades and had different job responsibilities.
Finally, we note that the record suggests complainant did not understand
that if she requested reasonable accommodation for a disability that
was neither obvious nor previously documented, the agency is entitled to
request medical information concerning the disability and the functional
limitations it causes. While the agency has an obligation under the
Rehabilitation Act to keep complainant's medical information confidential,
if complainant fails to submit sufficient medical documentation to enable
the agency to provide reasonable accommodation, the agency may not be
liable for a violation of the Rehabilitation Act. See EEOC Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations Of
Employees Under the Americans with Disabilities Act (July 27, 2000);
EEOC Policy Guidance on Executive Order 13164: Establishing Procedures
to Facilitate the Provision of Reasonable Accommodation (October 20,
2000); and EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act (revised October
17, 2002).
For the reasons set forth above, the Commission affirms the agency's
final decision.
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
November 19, 2002
__________________
Date