Agency.

Equal Employment Opportunity CommissionFeb 4, 2008
0220060012 (E.E.O.C. Feb. 4, 2008)

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