0120160912
03-18-2016
Alexandria S.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alexandria S.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120160912
Hearing No. 520-2013-00146X
Agency No. ARUSMA-11SEP04342
DECISION
On Monday, January 11, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final action dated October 9, 2015, fully implementing the decision of an Equal Employment Opportunity Administrative Judge (AJ) dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Technician, GS-7, at the Agency's Office of the Staff Judge Advocate, United States Military Academy in West Point, New York.
On November 29, 2012, Complainant filed a formal complaint alleging, in relevant part, that the Agency discriminated against her based on her disability and reprisal for prior equal employment opportunity (EEO) activity when:
1) From March 18, 2011, to August 19, 2011, she was subjected to a hostile work environment by an Agency occupational health physician when:
a) On March 18, 2011, the physician's fitness for duty examination of her consisted of a blood pressure check;
b) On March 18, 2011, the physician conducted the examination instead of an orthopedic specialist;
c) The results of the examination contradicted Complainant's orthopedic specialist;
d) The physician refused to provide Complainant with documentation as to how she made the determination that Complainant's medical condition was a permanent disability; and
e) In August 19, 2011, Complainant was required to appear for an appointment even though she was on Family and Medical Leave Act (FMLA) leave;
2) From July 2011 through the present, a Colonel placed constraints on her ability to discuss her situation with the United States Military Academy Chief of Staff or the Inspector General's Office;
3) From August 17, 2011, through the present she was denied a copy of the results of her fitness for duty examination; and
4) In August 2011, she was offered a change to a lower grade as a result of the fitness for duty examination.
The duties of a Legal Technician are similar to a court reporter and include recording and transcribing hearings, preparing records and cases, and making exhibits.
On November 4, 2011, the Agency issued Complainant a Notice of Proposed Removal for medical inability to perform the duties of her position and then declining an alternative job offer (made in August 2011, at the GS-6 level) which would accommodate her medical condition. In the proposed removal, the Agency recounted that the March 18, 2011 fitness for duty examination determined that Complainant was not medically able to perform the critical functions of her position, that she previously did not accept the accommodation of a mobility scooter which would allow her to get into a building where a courtroom was located, and thereafter did not accept the offer of a downgraded position with pay retention within her medical limitations. On January 19, 2012, the Agency upheld the proposed removal and Complainant was removed effective January 27, 2012.
Complainant appealed her removal to the Merit Systems Protection Board (MSPB). In an initial decision in February 2013, the MSPB reversed the removal, finding disability discrimination. But on petition for review, the Board sustained the removal and found no discrimination. In so doing, the MSPB found that the Agency proved the charge of medical inability to perform the position, that Complainant failed to act in good faith in the reasonable accommodation interactive process by refusing to explore/accept a mobility scooter, and she declined the Agency's consequent offer of another position. Further, the MSPB found that it was collaterally estopped from finding the scooter was not a reasonable accommodation for Complainant to gain entrance into the building where a court room was located because a United States District Court previously ruled it was so for her. Petitioner v. Department of the Army, 121 M.S.P.R. 189 (May 30, 2014).
On July 3, 2014, Complainant filed a civil action against the Agency in the United States District Court, New York Southern, 7:14cv5026. In her March 23, 2015, second amended complaint, which the court accepted as the actionable civil action complaint, Complainant alleged discrimination based on disability and reprisal for prior EEO activity when the Agency failed to reasonably accommodate her, she was subjected to a hostile work environment, and she was terminated.
On February 19, 2016, the Court granted (with prejudice) the Agency's motion to dismiss the second amended complaint. In so doing, the Court found that Complainant failed to show that she was subjected to a hostile work environment when she was coerced to navigate a ramp with a steep incline into the building with a courtroom that was not compliant with the Americans with Disabilities Act because she was not required to walk up the ramp and was offered the scooter. The Court found that Complainant failed to show that the Agency's offer of a scooter was not an effective reasonable accommodation. Regarding the removal, the Court found that Complainant put forth no facts to support her allegation that she was terminated because of her disability, as opposed to her refusal to accept accommodations that would permit her to do her job.
Meanwhile, in 2012, the Agency investigated issues 1 - 4 of the complaint before us. Complainant declined to participate in the investigation. Following the investigation, Complainant requested a hearing before an EEOC AJ. In September 2015, the AJ dismissed Complainant's complaint on the grounds that she filed a civil action on her removal, that issues 1 - 4 were directly interrelated with Complainant's reasonable accommodation claim which resulted in her termination, and these issues were inherently connected to the termination. Thereafter, the Agency issued a final action fully implementing the AJ's decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(3) provides that an Agency shall dismiss a complaint that is the bases of a civil action decided by a United States District Court in which the Complainant was a party. With regard to all issues except 1.e., we agree with the AJ's decision to dismiss the complaint. The termination arose from charges that Complainant was medically unable to perform the critical functions of her position - taking into account her declination of accommodations offered by the Agency as well as its offered alternative employment. The United States District Court upheld the termination. Given all this, Complainant's allegations regarding the fitness for duty examination are fairly viewed as a challenge on the termination charge that she was medically unable to perform the critical functions of her position; issue 2, which was generally alleged, is fairly viewed as a challenge to the legitimacy of the Agency's actions resulting in her termination, and issue 4 is fairly viewed as a challenge to the Agency's charge supporting the termination. The above issues are dismissed pursuant to 29 C.F.R. � 1614.107(a)(3).
As previously mentioned, Complainant declined to participate in the EEO investigation. Regarding issue 1.e., in a submission to the EEO counselor Complainant wrote that she requested the approval of leave under the FMLA to cover an absence from August 11 - 18, 2011. Complainant wrote that when she returned her supervisors advised that the Agency's occupational health physician was requiring her to submit to an appointment with her and provide a doctor's note from her orthopedic surgeon to cover absence, even though her use of intermittent FMLA was previously certified and approved to August 17, 2011. An August 19, 2011, email by the physician indicated that because Complainant recently had been out on sick leave for more than three days, she asked that Complainant come to the Agency's Occupational Health Services with a doctor's note before returning to work.
On September 29, 2011, Agency management renewed Complainant's FMLA leave entitlement effective August 18, 2011, to August 17, 2012. Complainant did not contend in her complaint that her leave was not approved or that the Agency delayed her return to work, and the FMLA entitlement was quickly renewed. Given this, we find that issue 1.e. fails to state a claim and would not reasonably likely deter EEO activity. 29 C.F.R. � 1614.107(a)(1).
Accordingly, the Agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 18, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Agency sent its final action to Complainant's attorney via certified mail. The record contains a postal return receipt indicating the final action was received at the attorney's address, but it does not contain any information showing when it was received. On appeal, Complainant's attorney represents he received the final action on December 11, 2015.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120160912
2
0120160912