Athenea Beltran, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity CommissionAug 17, 2009
0120081108 (E.E.O.C. Aug. 17, 2009)

0120081108

08-17-2009

Athenea Beltran, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.


Athenea Beltran,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security

(Customs and Border Protection),

Agency.

Appeal No. 0120081108

Agency No. HS-04-CBP-0022621

DECISION

On January 4, 2008, complainant filed an appeal from the agency's November

30, 2007 final decision 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 decision.

ISSUE PRESENTED

Whether the agency properly found that complainant was not denied a

reasonable accommodation or subjected to disparate treatment.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

a Customs and Border Protection Officer, GS-1895-11, at the agency's San

Diego Port of Entry in San Ysidro, California. The record reflects that,

on June 2, 2003, complainant suffered an injury to her right wrist while

on duty. On July 13, 2003, she submitted a request for leave without pay

indicating that she could not return to work until August 2, 2003, due

to a fractured wrist sustained on June 2, 2003.2 Complainant submitted

a second request for leave without pay dated August 27, 2008, indicating

that she would not be able to return to work until September 27, 2003.

Complainant returned to work on September 5, 2003. Although she had

primarily worked the "regular" or "day" shift from 8:00 a.m. to 4:00

p.m. before her injury, she was placed on the "swing" shift from 4:00

p.m. to midnight upon her return.

On September 19, 2003, complainant visited her doctor and obtained a

"Primary Treating Physician's Interim Report." The doctor's report stated

that complainant continued to suffer from discomfort in her right wrist

and that she believed that her discomfort was "due to the fact that she

is working day shifts, attending physical therapy, and then returning and

working a night shift. Additionally, the patient has to drive 60 miles

to her therapy location." The doctor's report indicated that complainant

"will limit her work from 8:00 a.m. to 2:00 p.m."

Complainant submitted the doctor's report on September 19, 2003 to

agency officials, including the Assistant Port Director and her direct

supervisor. She alleged that agency officials initially informed her

that she would not be given light duty despite the fact that she had

submitted her doctor's report. However, the Assistant Port Director

informed her later that day that, although the agency would not grant

her request to work from 8:00 a.m. to 2:00 p.m., she would be granted

a six-hour, light duty shift from 6:00 p.m. to midnight.

On October 1, 2003, complainant returned to her doctor's office for

an examination. The doctor's medical treatment report indicated that

complainant needed to continue working on limited duty from October 1,

2003 through November 1, 2003, and it listed several restrictions,

including limitations on repetitive movement, pushing, pulling, and

lifting. The report made no reference to when or how many hours she

should work. Beginning on October 5, 2003, complainant's duty hours

were changed from 6:00 p.m. to midnight to an eight hour, regular shift

from 8:00 a.m. to 4:00 p.m. On November 2, 2003, complainant returned

to work with no restrictions.

On December 9, 2003, complainant filed an EEO complaint alleging that she

was discriminated against on the bases of national origin (Filipino), sex

(female), and disability (fractured wrist) or perceived disability when,

on September 19, 2003, her supervisor denied her doctor's request that

she be allowed to work six hours instead of eight hours as a result of

an on-the-job injury.3

The agency initially dismissed complainant's complaint pursuant to 29

C.F.R. 1614.107(a)(4) for raising the same claims that were raised

in a grievance filed through a negotiated grievance procedure that

permitted allegations of discrimination. Beltran v. Department of

Homeland Security, Agency No. CBP#04-057C/04-4050 (February 9, 2004).

However, the Commission reversed the agency's decision on appeal and

remanded the matter to the agency for further processing in accordance

with 29 C.F.R. � 1614.108. Beltran v. Department of Homeland Security,

EEOC Appeal No. 01A42810 (January 14, 2005), request for reconsideration

denied, EEOC Request No. 05A50496 (March 4, 2005).

On remand, at the conclusion of the investigation, complainant was

provided with a copy of the report of investigation and a notice of

her right to request a hearing before an EEOC Administrative Judge

(AJ). In accordance with complainant's request, the agency issued

a final decision pursuant to 29 C.F.R. � 1614.110(b), finding that

complainant failed to prove that she was subjected to discrimination

as alleged. Specifically, the agency's decision found that complainant

was not an individual with a disability, she was not denied a reasonable

accommodation, and she failed to establish that the agency's legitimate,

nondiscriminatory reasons for its actions were a pretext for unlawful

discrimination.

CONTENTIONS ON APPEAL

Neither complainant nor the agency submitted a statement on appeal.

ANALYSIS AND FINDINGS

As this is an appeal from a decision 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). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

Reasonable Accommodation

Under the Commission's regulations, an agency is required to make

reasonable accommodation to the known physical and mental limitations

of an otherwise qualified individual with a disability unless the agency

can show that accommodation would cause an undue hardship. 29 C.F.R. �

1630.9. In order to establish that complainant was denied a reasonable

accommodation, she must show that: (1) she is an individual with a

disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified

individual with a disability pursuant to 29 C.F. R. � 1630.2(m);

and (3) the agency failed to provide a reasonable accommodation.

See Enforcement Guidance: Reasonable Accommodation and Undue Hardship

under the Americans with Disabilities Act, EEOC No. 915.002 (October

17, 2002) (Guidance). Here, we assume without finding that complainant

was a qualified individual with a disability within the meaning of the

Rehabilitation Act.

Upon review, we find that complainant was provided with a reasonable

accommodation because agency officials allowed her to work a light duty,

six hour schedule after she submitted her doctor's report on September

19, 2003. Complainant argued that agency officials informed her on

September 19, 2003 that she would have to work eight hour shifts from 4:00

p.m. to midnight despite the fact that her doctor had recommended that

she be placed on a six hour, light duty shift from 8:00 a.m. to 2:00 p.m.

However, complainant's supervisor submitted a statement into the record

indicating that she was placed on light duty status and assigned to a

secondary inspection area where no repetitive hand motions were used.

The supervisor also indicated that management placed complainant on the

swing shift to accommodate her afternoon physical therapy sessions.

The Assistant Port Director submitted a statement into the record

indicating that management scheduled light duty assignments based on

work load and medical restrictions, and complainant was only scheduled

to work six hours in accordance with her restrictions.

Although it is clear that complainant would have preferred a

different work schedule, we find that the record evidence does not

support complainant's contention that the agency was required to

grant her request to work the regular shift in order to provide her

with an effective accommodation. We note that, outside of her shift

assignment, complainant does not contend that agency officials required

her to work outside her medical restrictions, and she was returned to

a regular schedule after she submitted updated medical documentation

in October 2003. We further note that, although protected individuals

are entitled to reasonable accommodation under the Rehabilitation Act,

they are not necessarily entitled to their accommodation of choice.

See Guidance, Question 9. Therefore, we find that the agency met its

obligations under the Rehabilitation Act

Disparate Treatment

With respect to complainant's remaining claims, we concur with the

agency's finding of no discrimination. To prevail in a disparate

treatment claim, complainant must satisfy the three-part evidentiary

scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Complainant must initially establish a prima

facie case by demonstrating that she was subjected to an adverse

employment action under circumstances that would support an inference

of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,

576 (1978). Proof of a prima facie case will vary depending on the

facts of the particular case. McDonnell Douglas, 411 U.S. at 804

n. 14. The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,

complainant must prove, by a preponderance of the evidence, that the

agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

Assuming arguendo that complainant established a prima facie case of

discrimination with respect to all of her alleged bases of discrimination,

we find that the agency articulated legitimate, nondiscriminatory

reasons for its actions. Agency officials testified in the record

that complainant was provided with a light duty, six hour shift after

management received her request for an accommodation.

Complainant now bears the burden of proving by a preponderance of

the evidence that the agency's articulated reasons were a pretext for

discrimination. Complainant can do this directly by showing that the

agency's proferred explanation is unworthy of credence. Burdine, 450

U.S. at 256. We find that complainant failed to provide any evidence of

pretext in the record. Although complainant disputes statements made

by agency officials in the record and contends that several officials

indicated an unwillingness to provide her with an accommodation,

several agency officials submitted statements indicating that

complainant was given an accommodation. Moreover, the record reflects

that complainant was placed on a light duty schedule after September

19, 2003. Complainant did not request a hearing or submit a statement

on appeal, and the Commission is therefore limited to a review of the

record evidence. As a neutral party, we are not persuaded, based on the

record of investigation, that complainant has shown that the agency's

articulated reasons for its actions were a pretext for discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the agency's decision

finding no discrimination is AFFIRMED.

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

________8/17/09__________

Date

1 Documents in the record also associate this case with agency

no. CBP#04-057C/04-4050.

2 Complainant also filed a claim with the Office of Workers' Compensation

Program.

3 Complainant's formal complaint only alleged discrimination based on sex

and national origin. However, she subsequently requested an amendment

to include discrimination based on disability or perceived disability.

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0120081108

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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