0120110592
01-04-2013
Victoria G. Calacsan, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Victoria G. Calacsan,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120110592
Agency No. 10-00242-00145
DECISION
On October 29, 2010, Complainant filed an appeal from the Agency's September 28, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant failed to demonstrate that she was discriminated against as she alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination on the bases of race, physical disability, and reprisal when she was not provided an accommodation for her disability and when she was terminated from the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist at the Agency's Commander, Navy Region Southwest facility in San Diego, CA.
As a Contract Specialist, Complainant was responsible for assisting the Regional Contract/Procurement Manager in developing, preparing, and issuing solicitations; developing contracts and contract revisions, and performing contract administration to ensure contractor compliance with terms and conditions of contracts awarded in support of the Morale, Welfare, and Recreation (MWR) Department and Combined Bachelor Housing programs of all Navy installations within the command. Complainant's work was primarily sedentary in nature, and required some walking, bending, and stooping, as well as carrying some files and documents weighing not more than ten pounds.
On August 12, 2008, Complainant was granted a leave of absence after she was diagnosed with colon cancer. Complainant's treating physician informed management that Complainant was not expect to return to work until June 2009. On May 18, 2009, the treating physician notified the Agency that Complainant had experienced side effects from her chemotherapy treatments, which included hand-foot syndrome and neuropathy, trouble with fine motor skills; fatigue; and weakness. The physician estimated that Complainant would return to work on July 28, 2009.
Complainant was absent from work on sick leave, annual leave, and leave without pay (LWOP) continuously from August 12, 2008, through July 20, 2009. On June 4, 2009, she was issued a Notice of Proposed Disability Termination, based on her unavailability for work due to her medical condition. Complainant was advised in the Notice that she should contact the Agency when her doctor released her and she was able to return to work with no restrictions, so that she could be considered for any vacancy for which management determined she was qualified. Complainant submitted a rebuttal to the Notice and indicated that she expected to return to the office on July 28, 2009. However, on July 15, 2009, her physician advised the Agency that Complainant was still experiencing side effects from her treatment, and that her estimated return to work date would be January 15, 2010.
On July 20, 2009, Complainant was issued a Decision to Terminate for Disability. The Decision noted Complainant's absence and unavailability for work since August 12, 2008, and explained that LWOP could not be granted for a period exceeding one year. It was also reiterated that when Complainant's physician released her and she was able to return to work with no limitations, she would be considered for any vacancy for which management determined she was qualified. Complainant was separated from employment on July 21, 2009.
Thereafter, on October 13, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Filipino), disability (physical), and reprisal for prior protected EEO activity when: (a) the Support Services Director, Community Support Programs, failed to accommodate her disability; and (b) she was terminated on July 21, 2009.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Management explained that it articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was terminated from her position because her LWOP could not be extended beyond a year and because her prolonged absence caused an undue hardship because of workload constraints and a shortage of Contract Specialists. Management also noted that Complainant never asked for an accommodation but assuming that she was requesting an extension of her LWOP until she was cleared by her physician, the Agency maintained that it could not hold her slot indefinitely as it was a hardship on the Agency due to work constraints. Moreover, the Agency argues that the courts have held that indefinite leave is not a reasonable accommodation. Byrne v. Avon Prods., Inc., 328 F.3d 379 (2003). The FAD found that Complainant had failed to show that the Agency's reasons were pretext for discrimination or that discriminatory animus was involved in the decision to terminate Complainant.
CONTENTIONS ON APPEAL
On appeal, Complainant indicates that she was cleared to return to work on January 15, 2010. Thereafter, she noticed that a purchasing agent position, a position that she had previously held became available and she immediately applied for it. After emails regarding the status of her application to Human Resources and management went unanswered, she learned through an outside source that she had not been selected for the position.
On September 25, 2010, Complainant asserts that she spoke to her supervisor at a coworker's funeral and asked the supervisor why she had not been selected for the purchasing agent position. Complainant maintains that the supervisor told her that "we can't hire you because you have a pending case with MWR." Further, Complainant contends that she was not accommodated because the Agency had no intention of rehiring her even though the letter to terminate indicated that she would be considered for available positions.
Further, Complainant maintains that although she never used the word accommodation, it should have been clear to the Agency that she needed some type of accommodation because she was experiencing weakness in her hands and feet. Complainant contends that she never indicated that she could not function and do her job.
Finally, Complainant asserts that her absence did not cause an undue hardship on the Agency as the Agency was able to pull two individuals from their positions to assist the Procurement Department. She maintains that the needs of the department were met by employees who were already working at the MWR, and thus there was no alleged hardship prior to her termination.
Complainant maintains that she has been a competent and loyal employee for over 20 years. She asserts that she has endured hardship and hostility in her position but still remained a dedicated employee.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
In the instant case the Commission finds that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant's prolonged absence created an undue hardship on the Agency. We find the Agency adequately explained that it had to use additional personnel in order to complete Complainant's work load during her absence. In fact, Complainant acknowledges that two workers had to be taken away from their positions in order to fill in during her absence. The Agency also maintained that Agency policy prohibited LWOP to be extended for more than a year. We find that Complainant failed to demonstrate that any similarly situated employee not of her protected bases was treated more favorably by having their leave extended.
The Commission's regulations require an agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). For purposes of this analysis, we will assume, without so finding, that Complainant was an individual with a disability. A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m). EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Guidance) (revised Oct. 17, 2002) at 26. Employers may allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave. Id.
Here, we find that the evidence supported Complainant's need for leave due to her condition. We note that she was on approved LWOP at the time of her termination. The Agency was thus accommodating Complainant's request for leave up until the time of her termination. Further, we find that Complainant failed to show that she needed any accommodation other than extending her leave. Even after she was notified that her continued leave created an undue hardship, she submitted a physician's note requesting additional leave. The evidence does not show that she requested any other type of accommodation. Moreover, the evidence demonstrates that Complainant was unable to do any type of work due to the reaction of her treatment; therefore, we do not find that, at the time of her termination, she was qualified. While this situation is most unfortunate, we find that Complainant has failed to show that the Agency's reasons were pretext for discrimination or that she was denied a reasonable accommodation.
Finally, with respect to Complainant's contentions on appeal, the Commission finds that other than her conclusory statements, Complainant has not presented any evidence which supports her statements that the Agency had no intention of rehiring her or that she was not considered for the position that she applied for because she filed a complaint. Nevertheless, Complainant, if she believes that her nonselection was due to discriminatory reasons, should contact an EEO counselor. Accordingly, we find that Complainant failed to show that she was subjected to discriminatory animus with regard to the Agency's decision to terminate her.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD which found that Complainant failed to show that she was discriminated against as she alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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
_1/4/13_________________
Date
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0120110592
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110592