Vina D.,1 Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity CommissionJul 26, 2017
0120152229 (E.E.O.C. Jul. 26, 2017)

0120152229

07-26-2017

Vina D.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Vina D.,1

Complainant,

v.

John F. Kelly,

Secretary,

Department of Homeland Security

(Transportation Security Administration),

Agency.

Appeal No. 0120152229

Hearing No. 560-2008-00136X

Agency No. HS07TSA001281

DECISION

On September 24, 2012, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 21, 2012, final decision (PAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.

ISSUES PRESENTED

1. Whether the Agency properly dismissed Complainant's claim that she was discriminated against on the basis of disability and reprisal for prior EEO activity when, while employed as a Transportation Security Officer (TSO), her accommodations for her leg injury were withdrawn.

2. Whether Complainant was denied a reasonable accommodation when her limited-duty assignment that accommodated for her leg injury was withdrawn.

3. Whether the Agency properly held that Complainant was unable to establish was subjected to discrimination on the basis of disability and in reprisal for prior EEO activity when, on April 1, 2010, she was terminated from her position as a TSO.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as Transportation Security Officer at the Agency's Tulsa International Airport facility in Tulsa, Oklahoma. The following facts are set forth in the Agency's Final Decision (FAD): In August 2006, Complainant fell and broke her ankle while assisting a coworker. She was placed on limited duty as a result. On or about January 24, 2007, Complainant was advised that her work restrictions would no longer be accommodated. Complainant was subsequently formed by management that her work restrictions could no longer be accommodated, and that she should report to the Senior HR Specialist's office for further instructions. Complainant participated in a meeting with the Senior HR Specialist, the Scheduling Operations Officer, and the Assistant Federal Security Director (AFSD), where she was told to take a week off from work to determine if she could perform all of her job duties. The AFSD provided Complainant with a letter stating that he would make a termination decision based on her ability to perform her duties.

A few days later, Complainant advised the Senior HR Specialist that she could not perform all of her duties due to her condition. When she asked about returning to work, she was advised that there was nothing for her to do at work. Complainant filed a worker's compensation claim and it was accepted by the Office of Workers' Compensation Programs (OWCP) in January 2007. Her claim was subsequently approved, and she began receiving benefits.

In May 2007, the AFSD wrote Complainant a letter stating that he decided to terminate her due to her inability to perform her job duties. After making the determination, the AFSD discovered that Complainant was receiving workers' compensation benefits. He subsequently withdrew the termination action and did not re-issue it until Complainant's workers' compensation file closed in April 2010.

On August 26, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity under Title VII as articulated above. 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 Equal Employment Opportunity Commission Administrative Judge.

Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that while her termination was not effective until April 2010, it was the Agency's plan all along to terminate her. She states that this termination was simply the culminating event in a series of egregious acts by the Agency from the moment she filed her first EEO complaint in 2006. Complainant further contends that the evidence regarding her improper use of leave, used in part to support the termination, was not completely accurate. Complainant asks the Commission to reverse the Agency's FAD.

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 (EEO MD-110), at 9-16 (Aug. 5, 2015) (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

Untimely EEO Counselor Contact

The Agency dismissed claim 1 on the grounds that Complainant failed to make timely EEO counselor contact. The Agency contends that Complainant was aware on January 24, 2007 that

the Agency was no longer accommodating her work restrictions, and that she had 45 days from

this date to make contact with an EEO counselor regarding the matter. Instead, the record reflects that Complainant raised this issue for the first time when she initiated EEO counselor contact in April 2010 once her removal was effective.

We find the Agency's dismissal of this claim was improper. The Commission has stated that because an employer has an ongoing obligation to provide reasonable accommodation, failure to provides such accommodation constitutes a violation each time the employee needs it. See "Threshold Issues", EEOC Compliance Manual, at 2-73 (revised July 21, 2005). As the Agency's FAD indicated that there were complications of an indefinite duration from Complainant's leg injury. Moreover, Complainant received OWCP benefits up until April 2010. Because the Agency's withdrawal of Complainant's limited duty assignment was the reason that she was unable to continue working, we find that she had a continuing need for an accommodation, and therefore her April 2010 EEO counselor contact asserting this matter is timely. Because the Agency investigated this issue, however, we find that we are able to address it on the merits below.

Failure to Accommodate

Under the Commission's regulations an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R � 1630.9. For purpose of this failure to accommodate analysis, we will assume, without so finding, that Complainant is an individual with a disability. As was stated above, on or about January 24, 2007, Complainant was advised that her work restrictions would no longer be accommodated. While it does appear from the record that Complainant performed a light duty assignment for approximately five months, the Commission has long held that an agency is under no obligation to allow an employee to permanently perform nonessential duties. See Spry v. U.S. Postal Serv., EEOC Petition No. 03980078 (Dec. 11, 1998). There is no dispute that Complainant could not perform the essential functions of her position due to her injury. When she asked about returning to work, she was advised that there was nothing for her to do at work. Complainant has not established that there was an effective means available to accommodate her in the position she held. Moreover, she has not established that there was a vacant, funded position to which she could have been reassigned. Accordingly, we do not find that she was denied a reasonable accommodation.

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Rehabilitation Act case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (lst Cir. 1976) (applying McDonnell Douglas to retaliation cases) see also Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program,

198 F.3d 68 (2d Cir, 1999); Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001) (applying McDonnell Douglas to disability cases). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant is a qualified individual with a disability, pursuant to the Rehabilitation Act, and that she established a prima facie case of discrimination based on disability and reprisal, we find that the Agency articulated legitimate, non-discriminatory reasons for its decision to terminate her employment, namely Complainant's inability to perform the essential functions of her job. We find that Complainant failed to demonstrate that any conduct on the part of the Agency was based on discriminatory animus.

We also find no evidence of pretext. The AFSD noted that Complainant suffered from "ankle and leg injuries due to problems with her knee." The medical documentation provided indicated that Complainant would not be able to return to work and perform the full range of her duties, and there were no open positions at the airport that would have accommodated Complainant's restriction. Although Complainant stated that some colleagues with significant injuries were treated in a different manner than she, we find no persuasive evidence to support this assertion. The record does, however, support the Agency's position that like Complainant, similarly situated individuals were removed.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRMED the Agency's FAD. Complainant did not establish that she was denied a reasonable accommodation, or otherwise subjected to discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden's signature

Carlton M. Hadden, Director

Office of Federal Operations

___7/26/17_______________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's when the decision is published to non-parties and the Commission's

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