0120071274
02-27-2009
Annetta J. Beauford, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Annetta J. Beauford,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120071274
Hearing No. 110-2006-00065X
Agency No. 05-2606
DECISION
On January 6, 2007, complainant filed an appeal from the agency's December
1, 2006, final order concerning her equal employment opportunity (EEO)
complaint alleging 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 deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final order.
ISSUES PRESENTED
On September 23, 2005, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of disability (chronic epilepsy
and depression) and reprisal for prior protected EEO activity when:
1. On June 8, 2005, she received a two week suspension due to
excessive absences; and
2. On June 15, 2005, her request for a 90-day leave of absence
without pay, as a reasonable accommodation was denied.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Clerk, GS-04 at the agency's Internal Revenue Service.1 Complainant
was diagnosed with epilepsy. The agency was aware of her diagnosis but no
work restrictions were in place. Complainant frequently took unplanned
leave and was frequently charged with Absence Without Leave (AWOL).
She was told to follow specific leave procedures, which included talking
directly with her supervisor when she needed to use leave. On June 8,
2005, complainant was issued a Notice of Suspension for leave abuse
after she failed to follow the leave procedures.
Complainant decided that it would be in her best interest if she took
time off after the suspension. She requested a 90 day leave of absence.
She was told that she would have to provide medical documentation
to support her need for leave under Family Medical Leave Act (FMLA).
When complainant did not submit the requested medical documentation,
her request was denied.
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). Complainant timely
requested a hearing and the AJ held a hearing on September 20, 2006,
and issued a decision on November 15, 2006. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination as alleged.
The AJ found that assuming arguendo that complainant established a prima
facie case of discrimination as to all bases, the agency articulated
legitimate nondiscriminatory reasons for its actions. The agency
explained that complainant received a letter of suspension due to abuse
of leave. The agency indicated that complainant had a history of leave
problems and had previously received a letter of reprimand, a "leave
concern" letter, a leave restriction letter, an alternative discipline
letter, and a proposed suspension culminating in the final step of
suspending her for 14 days for failure to follow the instructions in
the leave restriction letter and abuse of leave.
With respect to the denial of 90 day leave of absence request, the agency
explained that complainant was told that she had to provide documentation
to support her request for FMLA leave based on her disability.2 The
agency indicated that complainant failed to provide documentation showing
that she needed 90 days off as an accommodation for her disability.
The agency maintained that its actions were not due to complainant's
disability and nor was it because of her prior EEO activity, as her prior
activity had occurred more than a year before the present allegations
and thus was too remote in time for reprisal to be inferred in this case.
The AJ found that complainant failed to show that the agency's articulated
reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she has a disability and that the
agency was aware of it. She maintains that while all of her absences
were not medically related some were. Complainant contends that the
agency should have granted her request for the leave of absence because
it would have given her time to regroup.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
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 Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or 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 25, 2000).
Under the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodation for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)
and (p). The Commission finds that even if we assume arguendo that
complainant established a prima facie case of reprisal and disability
discrimination, we agree that the agency has articulated legitimate
nondiscriminatory reasons for its actions.
The agency explained that with regard to the suspension, complainant
was issued a suspension because she abused leave and failed to follow
the leave procedures that had been established for her. The Commission
finds that complainant failed to show that the agency's reasons were
pretext for discrimination based on her disability and/or in reprisal for
prior EEO activity. Further, we find that complainant gave no real
explanation as to why she did not follow the leave procedure assigned
to her nor did she identify anyone similarly situated to her who was
treated more favorably. Therefore, we find that complainant has not
demonstrated that her disability or prior EEO activity were considered
with regard to her suspension.
With respect to the denial of complainant's request for a 90-day leave
of absence, the Commission finds that the agency again articulated a
legitimate nondiscriminatory reason for its action. The agency explained
that the request was denied because complainant failed to provide the
requested medical documentation to support her request for FMLA leave.
Accordingly, we find that complainant has not shown that the agency's
reasons were pretext for prohibited discrimination.
Further, to the extent that complainant is alleging that the agency failed
to accommodate her, the Commission finds that the agency accommodated
complainant by providing her with leave for disability related absences.
We also find that there is no medical documentation in the record that
indicates that complainant needed 90 days off as an accommodation.
When an individual's disability or need for reasonable accommodation is
not obvious, and he or she fails to provide reasonable documentation
requested by the employer, then the employer will not be held liable
for failure to provide the requested accommodation. EEOC's Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
American with Disabilities Act, EEOC Notice No. 915.002 (October 17,
2002), Question 6.
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
finding of no discrimination.
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
02/27/09
__________________
Date
1 Complainant resigned for the agency on December 2, 2005.
2 Initially complainant maintained that she wanted the time off in order
to care for her mother. She later changed her reason and indicated that
she wanted the time off because of her own medical condition.
??
??
??
??
2
0120071274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120071274