0220060012
02-04-2008
Agency.
Carol Mitchell,
Grievant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0220060012
Grievance No. BW2005R0027
DECISION
On June 12, 2006, Carol Mitchell (grievant), through her counsel, the
American Federation of Government Employees (AFGE), filed an appeal from
an Arbitration Opinion and Award issued on May 10, 2006, concerning her
grievance alleging reprisal 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 deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.401(d).1
As allowed by the Collective Bargaining Agreement between the AFGE and the
agency, grievant filed an EEO grievance on February 24, 2005, claiming
that the agency acted in reprisal for her prior EEO activity when (a)
the agency restricted her duties as a Safety and Occupational Health
Specialist (SOHS), GS-12, and placed her on light duty in August 2004;
and (b) the agency reassigned her to the position of Management Analyst,
GS-12, Office of Realty Management. On July 1, 2004, grievant requested
that the agency provide her a reasonable accommodation that she not be
assigned to overnight travel because of a stress-related disorder.2
Following an agency reorganization in October 2001, the SOHS position
description (PD) was modified to provide new duties, including a
requirement for overnight travel up to 50% to inspect agency field
offices.3 No out-of-state travel was required of grievant in 2001,
2002, or 2003; however, in March 2004, grievant's supervisor (SH)
informed his staff that all would be required to perform assessments of
agency facilities located outside Baltimore. Grievant was scheduled to
travel in September 2004, but in July 2004, she submitted a letter from
her psychiatrist (Dr. D) stating that she had a stress-related disorder
and that she not travel overnight for work at this time.4 The agency
requested further information, and after review and recommendation by a
physician in the Office of the Medical Director (Dr. W), S1 restricted
complainant's duties in August 2004, and the agency reassigned her
effective November 28, 2004.
In response to the agency's request for more detailed information, Dr. D,
who had cared for grievant since 1999, explained that she was being
treated for severe symptoms of anxiety and a "hormonal imbalance due to
pre-menopausal conditions which create many unpredictable symptoms."
Letter, August 12, 2004. In responding to the agency's questions
regarding grievant's ability to perform the duties identified in her
PD, he stated that she could perform all duties except for traveling
(overnight). He also indicated that she should not be required to drive
a car when she was experiencing increased stress and anxiety, because
she increased her medication to compensate at those time, which might
affect her physical and mental abilities.
Dr. W's memorandum dated August 20, 2004, expressed concern to grievant's
managers about grievant's use of a medication that "can cause excessive
sedation as well as mental and motor impairment events at standard
therapeutic doses" and that an increased dose should preclude her
from hazardous activities. Finding that her condition and treatment
impacted on many of the duties of the SOHS position, Dr. W recommended
that management consider whether grievant remained qualified for the
SOHS position.
The PD for the position of SOHS, GS-12, dated October 9, 2001, described
the duties of the position and listed nine "factors" or abilities required
of the incumbent. Factor 8, Physical Demands, stated:
The performance of inspections requires frequent standing, walking,
climbing, crouching, frequent stretching and lifting of moderately
heave items. Physical demands may vary in accordance with the type of
inspection and/or workloads. As much as 50 percent of the time may be
spent in travel status performing job requirements at [agency] offices
nationwide.
Factor 9, Work Environment, stated:
During inspections, the incumbent may be exposed to risks and discomfort
associated with environmental hazards. Incumbent is required to
wear safety shoes, safety glasses, respirator and protective clothing.
The work may involve exposure to machinery, fumes, dust, and potentially
hazardous materials. Work conditions may be dirty, confined spaces,
and under stressful time constraints. Incumbent may be required to
wear a pager and be on call on a 24-hour basis. Incumbent may be called
during off duty hours to return to work to respond to an environmental
or safety emergency.
Arbitration Decision
The Arbitrator found that issue (a) was not an adverse action but that
issue (b) constituted one; that a causal connection existed between
grievant's request and her reassignment; that the agency, through the
Associate Commissioner for Facilities Management (AC), testified that
no light duty position was available within the SOHS PD to accommodate
grievant; and that grievant did not show that the agency's missteps
in reassigning her amounted to unlawful retaliation. Specifically,
the Arbitrator held that the reassignment was not done with the intent
to retaliate against grievant or with the intent to deter her from
participation in the EEO process and that grievant failed to demonstrate
otherwise.
Grievant's Appeal
In her appeal brief, grievant contended that she was entitled to a de
novo review and that she established a prima facie case of retaliation.
Grievant rejected the agency's explanation that she was placed on light
duty and reassigned because she could not perform the essential duties
of the SOHS position. She proffered several arguments to demonstrate
pretext: First, she contended that, to the extent the agency found
that the reassignment was a reasonable accommodation, it was not,
since grievant did not request a reassignment. Second, there was
no interactive process. Third, the agency mistakenly considered her
request to be relieved of the travel requirement as permanent rather
than a temporary measure. Fourth, the agency's conclusion that her
medication, especially an increased dosage, would affect her physical
and mental abilities was not in accord with grievant's experience.
Fifth, travel was not an essential function of the SOHS position.
Reprisal Discrimination
In the matter before us, grievant claimed that the agency restricted
her duties and reassigned her in reprisal for prior EEO activity.
The consideration of claims claiming disparate treatment based on reprisal
is patterned after the three-step analysis introduced in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas,
supra, initially, the complaining party is required to establish a prima
facie case by showing an inference of discrimination;5 next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions;
and, lastly, the burden of persuasion reverts back to the complaining
party to demonstrate, by a preponderance of the evidence, that the
agency's reason(s) for its action was a pretext for discrimination,
i.e., that the agency's reason was not its real reason and that it acted
because of discriminatory animus. See Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993); see also U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
For purposes of further analysis, we assume, arguendo, that grievant
established a prima facie case based on reprisal. In the matter before
us, grievant claimed discrimination based on reprisal and not disability.
Her choice of a reprisal basis requires that we focus our analysis
on whether the agency acted in reprisal and not on the nature of the
reasonable accommodation or whether the agency's reasonable accommodation
was a proper one.6
The burden of proceeding moves to the agency for its articulation of a
legitimate, nondiscriminatory explanation of its actions. While the
agency's burden is not onerous, it must provide a specific, clear,
and individualized explanation for the treatment accorded the grievant.
See Burdine, supra. In the matter before us, we find that the agency
met its articulation obligation to explain to grievant its reasons for
restricting her duties and reassigning her. We find that the agency's
articulation has framed the factual issue "with sufficient clarity so that
[grievant] will have a full and fair opportunity to demonstrate pretext."
Id.
Through her testimony and in a letter to grievant, the AC explained
that grievant's condition and her treatment with medication required the
agency to remove her from the SOHS position, since she could compromise
her safety and the safety of others. The agency reassigned her to a
position in the Office of Realty in November 2004, which did not have
considerations of safety or overnight travel. Her immediate supervisor
addressed her in late July 2004. Noting that the SOHS PD required an
incumbent to immediately respond to emergencies, he questioned her ability
to do so and limited her duties until further evaluation was completed.
Since the agency articulated its reasons, the ultimate burden of
persuasion returns to the grievant to demonstrate, by preponderant
evidence, that the reasons stated by the agency for its actions are
pretext, or a sham or disguise, for discrimination. The grievant must
show that the agency's reasons for its actions were not its true reason
and that they were influenced by legally impermissible criteria, i.e.,
reprisal. Absent a showing that the agency's articulated reason was
used as a tool to discriminate against her, grievant cannot prevail.
Of relevance herein, grievant did not demonstrate that the agency's
explanation for restriction of her duties and reassignment were not its
true reasons and that they were taken because of an intent to retaliate.
While grievant raised questions about the agency's actions, i.e.,
whether the agency's actions were an appropriate response or whether her
request was a temporary or permanent one, she did not carry her burden to
demonstrate that the agency took the actions at issue for discriminatory
reasons or that it was motivated thereby. See n. 6, supra. The record
does not show that the agency's actions were not its true reasons or
taken in reprisal and that its actions were not in accord with its usual
business operations.
Based on a very thorough review of the record, the transcripts, and
the contentions on appeal, including those not specifically addressed
herein, we find that the agency did not discriminate against complainant
in reprisal.
CONCLUSION
Accordingly, the Arbitrator's Opinion and Award is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant 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).
GRIEVANT'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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
______02-04-2008____________
Date
1 The Commission's regulations provide that a grievant may appeal to the
Commission from a final decision of the agency, an arbitrator, or the
Federal Labor Relations Authority (FLRA) on a grievance when an issue of
employment discrimination was raised in a negotiated grievance procedure
that permits such issues to be raised. 29 C.F.R. � 1614.401(d).
2 A request for reasonable accommodation constitutes protected activity
under the Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.
3 Incumbents to the SOHS position were responsible for the development
and implementation for the control and abatement of environmental
hazards and health and safety issues for agency offices nationwide.
The Arbitrator found that the travel requirement was added "to ensure
that SOHSs would be available to respond to health and safety issues
nationwide." Arbitration Opinion and Award (Award), p. 4-5.
4 The Arbitrator found error, because the agency treated grievant's
request as a permanent exception to the travel requirement.
5 To establish a prima facie case of reprisal, grievant must show that:
(1) s/he engaged in a prior protected activity; (2) the official
acting on behalf of the agency was aware of the protected activity;
(3) s/he was subjected to adverse treatment by the agency; and (4)
a nexus, or causal connection, exists between the protected activity
and the adverse treatment.5 Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996); see Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000.
6 For this reason, we will not inquire into whether grievant is an
individual with a disability under the Rehabilitation Act, whether an
interactive process took place, whether the agency properly determined
that her medical condition and use of medication rendered her unable
to perform certain duties, or whether travel was an essential function
of her position. These factors are only considerations where a claim
is based on disability. The Commission's regulations on the Americans
with Disabilities Act are found at 29 C.F.R. Part 30, and the Appendix
to Part 1630-Interpretive Guidance on Title I of the Americans With
Disabilities Act. For more information on reasonable accommodation,
see Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act (Enforcement Guidance), EEOC
Notice No. 915.002 (October 17, 2002). Both documents are available on
the Commission's website at www.eeoc.gov.
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0220060012
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0220060012