0120092740
10-26-2011
Wendy C. Monesmith, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Rural Development), Agency.
Wendy C. Monesmith,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Rural Development),
Agency.
Appeal No. 0120092740
Hearing No. 551-2008-00126X
Agency No. RD200700546
DECISION
On June 16, 2009, Complainant filed an appeal from the Agency’s May
13, 2009, final order 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. The Commission deems the appeal timely and accepts
it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Single Family Housing Technician at the Agency’s Rural Development
Area Office in Mt. Vernon, Washington. In April 2004, complainant
was placed on a sick leave restriction in response to a history of
unexplained absences and tardiness. The restriction required her to
provide acceptable medical documentation for any claimed sick leave.
Approximately 2 ½ years later, after Complainant’s attendance problems
did not improve, the Administrative Programs Director met with her to
determine if any accommodations were necessary. He requested that she
provide medical documentation of her disability, but again, Complainant
refused to provide documentation. Her poor attendance continued, and
the leave restriction was renewed in March 2007.
Also in March of 2007, Complainant made a request for the following
accommodations:
(1) use of the ADA bathroom;
(2) allowance of schedule adjustment for scheduled appointments with
her psychologist;
(3) an understanding that she suffered from PTSD and TMJ;
(4) allowance to continue to work for the agency; and
(5) a chance to start over.
Despite the fact that Complainant had not submitted documentation
sufficient enough for the Agency to ascertain its obligations under the
Rehabilitation Act, the Agency approved Complainant's use of a private
restroom and allowed her to take time off from work to attend previously
scheduled medical appointments - provided she produced appropriate
documentation.
Between March and May 2007, Complainant was placed in AWOL status for four
days when she was absent without providing any sort of documentation.
On May 14, 2007, the Agency’s Washington State Director wrote a
letter to Complainant discussing her absences, reminding her of her
leave restrictions, and requesting documentation of disability so that
the Agency could provide her an accommodation. Concurrently, he also
wrote the Complainant another letter proposing a one day suspension for
her violations of the leave restriction.
On May 15 and 16, 2007, the Complainant failed to report to work based
on her daughter's illness. The Complainant stated in writing on her leave
request that she would not provide documentation of her daughter's illness
because "this is a very personal matter of my daughter's… I will not
submit her medical documentation." On May 17, 2007, Complainant did not
report to work due to a sprained ankle, for which she provided medical
documentation. Complainant was allowed to take the time off without pay.
Complainant’s medical documentation approved her to work on May 18,
2007, which she did. Complainant left work at 1:30 p.m. on that day,
stating that she was not feeling well. Complainant did not report to
work on May 21, 2007. On May 22, 2007, her supervisor met with her to
advise her that she needed documentation for her absences. On May 23,
2007, the Complainant resigned from her position.
On July 31, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of disability when she was
denied reasonable accommodation and harassed by the Agency’s requests
for medical documentation so much so that she felt compelled to resign.
Complainant identified her impairments as Post Traumatic Stress Disorder;
severe headaches and two Total Maxillary Jaw (TMJ) reconstructions.
The Agency accepted the complaint for investigation. However, despite
numerous sincere attempts by the EEO investigator to obtain an affidavit
as well as medical documentation from the Complainant, Complainant did
not comply.
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). Complainant
timely requested a hearing. On November 20, 2008, the AJ assigned to
the case issued notice to both parties that she was considering issuing
a decision without a hearing. The Notice summarized relevant facts
based on the report of investigation and invited the parties to respond.
Neither party responded. The AJ issued a decision without a hearing on
March 20, 2009.
In her decision, the AJ noted that Complainant’s lack of cooperation
with the investigation made it impossible to determine whether she
was entitled to coverage under the Rehabilitation Act but drawing that
inference in her favor, she assumed that Complainant was an individual
with a disability. The AJ found:
The evidence on the record establishes that the Complainant refused
all efforts by the Agency to assist her, refused to turn over medical
documentation and resigned without prior notice and without giving an
indication of her reasons for doing so. It appears that the only kind
of accommodation Complainant considered reasonable was to be given the
absolute freedom to call in sick. The record clearly reflects that
the Agency made every reasonable effort to engage Complainant in the
interactive process in order to find a reasonable accommodation rather
than give in to Complainant's unreasonable demands. As such, the failure
to communicate rests entirely on Complainant.
AJ Decision at 10-11. The AJ concluded that the Agency’s requests for
medical documentation were lawful and consistent with its obligations
under the Rehabilitation Act. The AJ found no evidence that the
requests were hostile or intended to harass Complainant or render her
working conditions intolerable. Moreover, the AJ found no evidence
that anyone was treated more favorably than Complainant under similar
circumstances, noting that the other individual in the office who
had TMJ reconstruction did not have a negative sick leave balance and
did not refuse to provide documentation to support absences. The AJ
concluded that the Agency was not liable for denial of accommodation or
disability based discrimination. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
Upon review of the record, we find that the issuance of a decision
without a hearing was appropriate because no reasonable fact finder
could find in Complainant’s favor. Complainant’s refusal to
participate in the interactive process undermines her claim that the
Agency denied her accommodation especially in light of the unreasonable
nature of her request to be able to take excessive unscheduled leave
without explanation. We further find that while the Agency was aware
of Complainant’s impairments, it did not have sufficient medical
documentation to determine, what, if any, accommodation would have been
appropriate. Thus its inquiries in that regard were lawful as were its
requests that Complainant support her sick leave requests. There is
no evidence to support a finding that the requirements that flowed from
the sick leave restriction or the pattern of absences that provoked the
restriction were arbitrarily or inconsistently applied to Complainant.
We also agree with the AJ that there is no evidence of harassing,
intimidation or hostile conduct on the part of the Agency. To the
contrary, the record proves that management suffered Complainant’s
excessive absences for several years and endeavored to determine how
to help her. The only discipline she ever received was a proposed
one day suspension for being AWOL and failing to follow instructions.
Complainant’s decision to resign was hers and hers alone, and we find
no Agency liability.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s
final order.
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
October 26, 2011
__________________
Date
2
0120092740
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092740