0120080152_rev
12-10-2009
___________________, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Health Resources and Services Administration), Agency.
___________________,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Health Resources and Services Administration),
Agency.
Appeal No. 0120080152
Agency No. HRS-03-07
DECISION
On October 5, 2007, complainant filed an appeal from the agency's
September 4, 2007 final decision 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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Public Health Analyst (GS-9) employed with the Human Resource
Services Administration (HRSA) Scholars Program in the Division of
Management Services, Office of Administrative and Financial Management
in Rockville, Maryland. Report of Investigation (ROI) at Exh. 6.
The Scholars Program consisted of three month rotations to different
bureaus in order to provide training in health care programs and grants
analysis. Id. The HRSA Scholars Program management was directed by
the Program Coordinator (PC), who reported to the Acting Associate
Administrator (AAA), Office of Administration and Financial Management.
Id. at ROI Exh. 5, 6. Complainant's first and second level supervisors
changed as she rotated through different offices. ROI at Exh. 6.
Complainant had been diagnosed with chronic sinusitis. ROI Exh. 12.
Complainant's second rotation was in the Healthcare Systems Bureau, from
October 16, 2006 to January 19, 2007. On October 17, 2006, complainant
notified the Acting Director of the Health Preparedness Division that she
required a larger workspace with temperature and ventilation controls.
ROI at Exh. 6. Complainant was provided an accommodation of working in
a secretarial space with ventilation and temperature controls for the
duration of her second rotation after submitting medical documentation
to support her accommodation request. Id.
Complainant's third rotation was in the Healthcare Systems Bureau,
National Health Service Corps from January 22, 2007 to April 13, 2007.
Id. Complainant previously had been assigned to this Bureau during her
first rotation. Id. Complainant's accommodation was approved prior to
her third rotation; however, the workspace selected for complainant did
not meet her accommodation requirements. Id. She immediately informed
the rotational supervisor and was told that any room change would be
implemented on the first day of the new rotation. Id. On January 22,
2007, the rotational supervisor told complainant to speak with AAA
regarding the change. Id. Complainant submitted a letter to PC dated
January 22, 2007, explaining that the workspace did not meet the needs
of her medical impairments. Id. AAA denied her request and instructed
her to take leave if she was unable to work in the assigned space. Id.
Because complainant was unable to work in the assigned space, she took
leave for the day. Id. On January 22 and 23, 2007, complainant received
e-mails regarding her absence on those days and her need to use leave to
account for her absences. Id. On January 23, 2007, complainant came
to the agency to discuss her accommodation needs. Id. On January 24,
2007, complainant was provided a private office with proper temperature
and ventilation controls. Id.
On February 9, 2007, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of disability (chronic sinusitis
and claustrophobia) when: (1) she was denied a reasonable accommodation.
Complainant further alleged that she was subjected to retaliation when:
(2) she was harassed when management sent her two emails requesting that
she sign for leave on January 22 and 23, 2007; (3) she was placed in an
open area where the secretarial staff was located; and (4) during her
third rotation she was assigned to Healthcare Bureau System where she
had been previously assigned during her first rotation.
At the conclusion of the investigation, complainant was provided 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 she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant principally argues that the FAD contained errors
of fact relevant to her case. The agency did not reply to the appeal.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, 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").
Reasonable Accommodation
With regard to claim 1, we note that under the Commission's regulations,
an agency is required to make reasonable accommodation to 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. �� 1630.2(o) and (p). As a threshold
matter, complainant must establish that she is an "individual with
a disability." An individual with a disability is one who (1) has a
physical or mental impairment that substantially limits one or more major
life activities, (2) has a record of such impairment, or (3) is regarded
as having such an impairment. Interpretive Guidance on Title I of the
Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
A reasonable accommodation may consist of modifications or adjustments
to the work environment, or to the manner or circumstances under which
the position held is customarily performed that enables a qualified
individual with a disability to perform the essential functions of
that position. 29 C.F.R. � 1630.2(o)(ii). Complainant may use "plain
English" and need not mention the Rehabilitation Act or use the phrase
"reasonable accommodation" when requesting a reasonable accommodation.
See EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, No. 915.002, Question
1 (as revised October 17, 2002) ("Reasonable Accommodation Guidance").
In order to prove that the agency failed to provide him with a reasonable
accommodation, complainant "need only show that an 'accommodation'
seems reasonable on its face, i.e., ordinarily or in the run of cases."
Reasonable Accommodation Guidance, citing US Airways, Inc. v. Barnett,
535 U.S., 122 S. Ct. 1516 (2002). Once complainant has shown that the
accommodation he needs is "reasonable," "the burden shifts to the agency
to provide case-specific evidence proving that reasonable accommodation
would cause an undue hardship in the particular circumstances." Id.
Assuming, arguendo, that complainant established that she is a qualified
individual with a disability, we find that complainant has failed
to establish that the agency did not provide her with a reasonable
accommodation. The record reveals that prior to January 22, 2007,
complainant submitted medical documentation and was provided with an
accommodation as to her workspace assignment that met the requirements
of her impairment. ROI at Exh. 6. Specifically, she was placed
in a secretarial workspace with proper ventilation and temperature
controls. Id. On January 22, 2007, when complainant reported for duty
to her third rotational assignment, complainant submitted a note to PC
stating that her workspace assignment did not comply with the terms of
her medical restrictions because it lacked the requisite "ventilation
(heat/cool) controls." ROI at Exh. 13. AAA replied to complainant's
letter and stated that "the provision of ventilation controls is
not supported by the medical documentation you provided. Therefore,
I believe the office to which you have been assigned in the National
Health Service Corps . . . meets the agency's obligation to provide an
adequate accommodation."1 ROI at 13. In an e-mail dated January 23,
2007, complainant contacted the Disability Program Manager (DPM) and
informed her that AAA and PC refused to change her workspace assignment.
On January 24, 2007, complainant was provided an accommodation that
complied with her medical restrictions. ROI at Exh. 6.
We note that the record reveals that in preparation for complainant's new
workspace on her third rotation, PC e-mailed the DPM to determine what
complainant's needs were. ROI at Exh. 12. In an e-mail dated January 8,
2007, DPM stated that the workspace needed to have adequate ventilation
and be reasonably open. Id. Accordingly, we find that although PM and
AAA did not provide complainant the ventilation controls as required,
they were operating under information provided by DPM. Once informed
of the need for ventilation controls, the agency offered complainant a
workspace that complied with complainant's medical restrictions within
two days. The Commission does not find this delay of two days to be
unreasonable. Accordingly, we find that the agency met its obligation
to provide complainant with a reasonable accommodation.
Retaliation
With regard to claim 2, we note that in order to establish a claim
of harassment in retaliation for engaging in protected EEO activity,
complainant must show that: (1) she engaged in prior EEO activity; (2)
she was subjected to unwelcome conduct; (3) the harassment complained of
was based on her prior EEO activity; (4) the harassment had the purpose
or effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
Roberts v. Department of Transportation., EEOC Appeal No. 01970727
(September 15, 2000).
The record reveals that PC e-mailed complainant on February 2, 2007,
regarding the need for her to submit leave forms for her absences
on January 22, and 23, 2007. ROI at Exh. 14. We find that these
two incidents are insufficient to establish that the e-mails had the
purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment.
Nothing in the content of the e-mails could be interpreted to create
an intimidating, hostile, or offensive work environment. Moreover,
complainant ultimately was not charged leave for those days. Accordingly,
we find that complainant failed to establish that she was subjected to
retaliatory harassment.
With regard to claims 3 and 4, we note that complainant can establish
a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Administration, EEOC Request No. 05960403
(December 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973)). Specifically, in a reprisal claim, complainant may establish
a prima facie case of reprisal by showing that: (1) she engaged in a
protected activity; (2) the agency was aware of her protected activity;
(3) subsequently, she was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 26, 2000).
With regard to claim 3, complainant was placed in the secretarial
workspace in order to accommodate her medical restrictions. We find
that complainant failed to establish that she was subjected to any
adverse treatment. The Commission's policy on retaliation prohibits any
adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in a protected
activity. See EEOC Compliance Manual Section 8, "Retaliation" No.915.003
at pp. 8-13 (May 20, 1998). Nothing in the record supports complainant's
contentions that the agency did so to retaliate against her. Complainant
argues on appeal that there were other offices available for her to
use with ventilation control; however, it is unclear from the record
whether these offices were sufficiently open to comply with her medical
restrictions. Additionally, we note that, while under the Rehabilitation
Act, protected individuals are entitled to reasonable accommodation,
they are not necessarily entitled to their accommodation of choice.
See Castaneda v. United States Postal Service, EEOC Appeal No. 01931005
(February 17, 1994). Accordingly, we find that complainant failed to
establish a prima facie case of retaliation with regard to claim 3.
Similarly, with regard to claim 4, we find that complainant failed
to establish that she was subjected to an adverse action. Complainant
contends on appeal that no other scholar program participants were placed
in the same Bureau twice. Complainant also argues that the agency
was not correct when it stated that the Bureau had become independent
and therefore was a different assignment. We find, however, that
complainant failed to demonstrate how this placement was detrimental to
her development in the scholars program. Further, nothing in the record
supports an inference that the agency was motivated by retaliatory animus.
Accordingly, we find that complainant failed to establish a prima facie
case of retaliation with regard to claim 4.
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 finding that complainant failed to establish that the agency did
not provide her with reasonable accommodation and subjected her to
retaliation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
December 10, 2009
Date
1 While the letter to AAA is dated February 22, 2007, we note that it
also states that "I have received and reviewed the note you sent to
[PC] today." ROI at Exh 13 (emphasis added). We find the date of
February 22, 2007, is a typographic error and should rather state
"January 22, 2007."
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0120080152
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080152