01994044
08-16-2002
Adriene E. Payne, Complainant, v. Roderick R. Paige, Secretary, Department of Education, Agency.
Adriene E. Payne v. Department of Education
01994044
August 16, 2002
.
Adriene E. Payne,
Complainant,
v.
Roderick R. Paige,
Secretary,
Department of Education,
Agency.
Appeal No. 01994044
Agency No. ED-9452000
Hearing No. 280-97-4247X
DECISION
INTRODUCTION
Complainant initiated this appeal from the final agency decision (FAD)
concerning her complaint of unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that she was discriminated against on the bases of race (African
American), disability (lumbalgia), and in reprisal for her prior EEO
activity when the agency denied her request for reasonable accommodations
(ergonomic chair, footrest, and reading stand for her desk), and failed
to provide the requested reasonable accommodations in a timely manner.<1>
For the following reasons, the Commission AFFIRMS the agency's finding
of no discrimination.
BACKGROUND
The record reveals the following information pertinent to this appeal.
At all times relevant to the agency action at issue, complainant was
employed as an Equal Employment Opportunity Specialist at the agency's
Office for Civil Rights in Kansas City, Missouri. Complainant contends
that on September 6, 1990, she presented the agency with two notes
from her physician. In one, the doctor asserted that �[i]n order
to have appropriate lower back support during long automobile trips,
[complainant] requires the use of her private car.� In the other, the
doctor requested the agency �[p]lease allow [complainant] the use of an
orthopedic-support office chair for necessary support for her back.�
Neither note included any other information regarding complainant's
medical condition. The agency granted her request to use her own vehicle.
The agency claims that the request for an orthopedic support chair was
not part of the September 6, 1990 request made by complainant.
In September, 1993, complainant (for the second time, she contends)
submitted the 1990 doctor's statement requesting an ergonomic chair
to her first level supervisor, S1. Complainant was informed that the
request was outdated, and that she needed to provide a more recent
assessment. On October 13, 1993, complainant submitted a document from
her chiropractor titled �Request for Reasonable Accommodation.� In
this request, the chiropractor stated that complainant had come to his
office complaining of lower back pain, and that �her work station [was]
contributing to the prolonged repeated periods of lumbalgia she [was]
currently experiencing.� The request contained no further information
about complainant's medical condition. The chiropractor suggested that
complainant be provided with an ergonomic chair, an adjustable footrest,
and a document stand to place her work at eye level. S1 submitted this
document to her second level supervisor, S2, who, on November 26, 1993,
forwarded the document, along with an equipment request, a price quote,
and a recommendation that the equipment be ordered, to the Regional
Director (RD).
Subsequently, complainant was requested to provide more information about
her medical condition. S1 asked complainant, in a handwritten note,
the following two questions: �[D]oes your chiropractor consider your
prolonged, repeated lumbalgia to be a disability,� and �does the condition
significantly interfere with your major life functions or performance of
your job.� Complainant replied to these questions by writing �yes� after
each question, and returning the note to S1. There is no indication that
complainant provided any medical or other documentation which supported
these answers or more fully explained the nature of her medical condition.
On March 30, 1994, complainant initiated contact with an EEO counselor,
claiming that she had been discriminated against by the agency in its
failure to provide her with the requested reasonable accommodations.
On April 7, 1994, without receiving any further medical information from
complainant, the agency ordered the requested items. Complainant received
the requested chair on April 26, 1994, and the footrest and document
stand on May 6, 1994.
Complainant filed her formal complaint on May 3, 1994, alleging that
she had been unlawfully denied the requested accommodations. At the
conclusion of the investigation, complainant was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ)
or, alternatively, to receive a final decision from the agency. In a
letter filed with the agency on April 24, 1997, complainant requested
a hearing before an AJ. However, in a letter received by the agency on
November 12, 1998, she withdrew her hearing request and asked for a FAD
to be issued by the agency without a hearing.
In its FAD, the agency found that complainant had established a prima
facie case as to her race and reprisal claims. In so finding, it noted
that complainant had established her membership in the appropriate
protected groups for these claims, and that other employees outside of
her protected groups had been provided reasonable accommodations. As for
complainant's disability claim, the agency found that complainant had
failed to establish that she was a person with a disability. The agency
also found that it had articulated a legitimate, nondiscriminatory
reason for its actions. It found that complainant's initial request for
accommodation was submitted in a timely manner by her supervisors; the
agency determined the medical documentation provided was not sufficient
to determine complainant's disability status; the request was returned for
further information; and no further medical documentation was provided.
The agency further found that complainant had failed to establish that the
agency's articulated reason was a pretext for unlawful discrimination,
as she did not show that persons outside her protected group were not
asked to provide supplementary information upon requesting reasonable
accommodations, or that such persons were provided accommodations in a
more timely manner. This appeal followed.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
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).
Individual with a Disability
Whether proceeding under a disparate treatment or reasonable accommodation
analysis, complainant must establish that she is a qualified individual
with a disability. Raju v. Department of Veterans Affairs, EEOC Appeal
No. 01986574 (Nov. 1, 2001); see also 29 C.F.R. � 1630.4 (prohibiting
discrimination against qualified individuals with disabilities).
An �individual with a disability� is one who has a physical or mental
impairment that substantially limits one or more major life activities;
has a record of such impairment; or is regarded as having such an
impairment. Id.; see also 29 C.F.R. � 1630.2(g) (1)-(3). A physical or
mental impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner, or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j).
Applying this analysis to the instant case, we conclude that complainant
has not met her burden of establishing that, at the time of the agency
actions at issue, she was an individual with a disability for purposes
of coverage under the Rehabilitation Act. The only evidence presented
documenting in any way complainant's medical condition at the time
complainant requested accommodation is the September 6, 1990 note from
her doctor requesting the agency allow her to use an orthopedic office
chair, and the October 13, 1993 similar request from complainant's
chiropractor. There is no indication in the former as to the nature
of the medical condition, if any, which gave rise to the request, and
the latter merely references �lower back pain� and lumbalgia, again
without any further information as to whether or how complainant's
underlying condition substantially limited a major life activity.
By the same token, complainant has not established that she had a record
of having a physical or mental impairment that substantially limits one
or more major life activities, or that the responsible agency officials
considered her to have had such an impairment. Accordingly, we cannot
conclude that complainant has met her burden of establishing that she
was an individual with a disability.
Race and Retaliation Discrimination Claims
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). A complainant must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited reason was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567
(1978). Next, the agency must articulate a legitimate, nondiscriminatory
reason for its action(s). Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248 (1981). After the agency has offered the reason for
its action, the burden returns to the complainant to demonstrate,
by a preponderance of the evidence, that the agency's reason was
pretextual�that is, it was not the true reason, or the action was
influenced by legally impermissible criteria. Burdine, 450 U.S. at 253.
To establish a prima facie case of unlawful discrimination based upon
race, complainant must show that she is a member of a protected group,
that she was subjected to an adverse employment action, and that she was
treated less favorably than other similarly situated employees outside of
her protected group. Packard v. Department of Health & Human Servs.,
EEOC Appeal Nos. 01985494, 01985495 (Mar. 22, 2001). We note that
it is not necessary for complainant to rely strictly on comparative
evidence in order to establish an inference of discriminatory motivation
necessary to support a prima facie case. O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on
O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002,
at n.4 (Sept. 18, 1996). In applying the McDonnell Douglas analytical
framework to a claim of reprisal, four elements are required to establish
a prima facie case: participation in the EEO process or opposition to
practices made illegal by the laws that the EEOC enforces; knowledge
of the complainant's participation by the responsible officials; a
determination that an action occurred which is reasonably likely to
deter protected activity; and a determination that a causal connection
is established between the EEO activity and the incident at issue.
See Carroll v. Department of the Army, EEOC Request No. 05970939 (Apr. 4,
2000); Chappell v. United States Postal Serv., EEOC Appeal No. 01963588
(Sept. 15, 1998); EEOC Compl. Man. No. 915.003, p. 8-15 (May 20, 1998).
Even assuming for the sake of this appeal that complainant has
established prima facie cases of race and reprisal discrimination, we
cannot conclude that she has proven by a preponderance of the evidence
that the legitimate reasons offered by the agency were not its true
reasons, but were a pretext for discrimination. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). We agree with the
agency that it met its burden by asserting that the delay in providing
the requested accommodation was caused by complainant's failure to
present sufficient documentation concerning the nature of her medical
condition for the agency to determine whether or not she was a person
with a disability. However, complainant has not proffered sufficient
evidence to rebut the agency's proffer and show that the agency's delay
in processing her accommodation request was motivated by her race or
prior EEO activity. According to the Commission's Enforcement Guidance,
an employer is entitled to documentation from an individual requesting
a reasonable accommodation which would show that the individual has a
covered disability for which they require a reasonable accommodation.
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act at 12-15 (Mar. 1, 1999).
The interactive process the agency engaged in with complainant in an
effort to discover whether she had a physical or mental impairment that
substantially limited one or more major life activities was far from
a model exchange of information regarding complainant's request for
reasonable accommodation. See id. at 10-14 (discussing proper employer
response to request for reasonable accommodation). However, there is
no indication from the evidence presented that complainant's race or
prior EEO activity had any role in either the manner in which the agency
communicated with complainant, or in the amount of time it took between
complainant's first request for reasonable accommodation in September,
1993,<2> to the agency's full provision of that accommodation on May
6, 1994.
Furthermore, even setting aside the issue of complainant's entitlement
to a reasonable accommodation under the Rehabilitation Act, the agency
presented unrebutted evidence that the identified comparison employees
who received reasonable accommodations from the agency received those
accommodations only after presenting medical documentation to the
agency which was sufficient for it to determine that they were in fact
individuals with disabilities entitled to reasonable accommodation.
The agency also showed that the timeliness of its response to these
requests varied on an individual basis, with some persons receiving
accommodation in a shorter time, and others longer, than the time it
took for complainant to be accommodated. Therefore, we conclude that
the evidence does not support complainant's claim that the agency's
response to her request was discriminatorily untimely.
As the ultimate burden of persuading the trier of fact that the agency
intentionally discriminated remains at all times with complainant,
Reeves, 530 U.S. at 143, we cannot conclude that complainant has presented
preponderant evidence which proves that the agency's delay in providing
the requested accommodation was the result of complainant's race or
prior EEO activity. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
the Commission AFFIRMS the agency's FAD finding no discrimination.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
August 16, 2002
Date
1 The claim initially presented to the EEO counselor was only that the
agency had failed to provide the requested reasonable accommodations,
and this is the claim that was accepted for investigation. However,
the EEO investigator's report indicates that after complainant's
receipt of the requested accommodations, but before the completion of
the EEO investigation into her complaint, she claimed that she had been
discriminated against when the agency failed to provide the requested
accommodations in a timely manner. Accordingly, we consider complainant
to have exercised her right to amend her complaint prior to the completion
of the investigation to include the timeliness claim. See 29 C.F.R. �
1614.106(d) (�A complainant may amend a complaint at any time prior to
the conclusion of the investigation to include issues or claims like or
related to those raised in the complaint.�).
2 While complainant contends that she first requested an orthopedic chair
as a reasonable accommodation in 1990, the only evidence she presented in
support of that contention was the doctor's note dated September 6, 1990.
In light of the agency's prompt response to complainant's September 6,
1990 request to be allowed the use of her personal car for extended work
travel, and the lack of any documentary evidence regarding the agency's
failure to abide by any 1990 chair request, she has not persuaded
the Commission that the orthopedic chair request was made in 1990.
Accordingly, we find that the agency first received complainant's chair
request in September, 1993 when complainant presented to S1 the September
6, 1990 note requesting the orthopedic chair.