07a00026
07-17-2000
Betty Smith, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Betty Smith v. Social Security Administration
07A00026
July 17, 2000
Betty Smith, )
Complainant, )
) Appeal No. 07A00026
v. ) Agency No. 960154SSA
) Hearing No. 160-96-8678X
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
By Notice of Appeal postmarked April 17, 2000, the agency filed an appeal
with this Commission from the Administrative Judge's Decision concerning
complainant's equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of physical disability (systemic
lupus/Raynaud's Phenomenon), in violation of the Rehabilitation Act of
1973,<1> as amended, 29 U.S.C. � 791, et seq.<2> Complainant alleged
she was discriminated against when the agency denied her request
for an excused absence pursuant to an agency policy, which forced
her to take 27.75 hours of leave without pay (LWOP) from February 6,
1996 through February 15, 1996. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission MODIFIES the AJ's Decision.
Complainant, a GS-11 Claims Representative at the agency's Brooklyn, New
York, Avenue X facility (�facility�), filed a formal complaint with the
agency on March 13, 1996, alleging the discrimination summarized above.
Following an investigation and a hearing before the Administrative Judge
(AJ), the AJ issued a Decision finding that the agency discriminated
against complainant. Initially, the AJ accepted the parties stipulation
that complainant was a qualified individual with a disability as defined
by the Rehabilitation Act.<3> Next, the AJ found that the agency
failed to adequately consider complainant's request for an excused
absence pursuant to an agency policy known as the Pierce Memo, which
gave certain mobility and visually impaired employees administrative
leave (AL) for periods when they were unable to get to work due to
severe inclement weather. The AJ found that there was no evidence in
the record supporting a conclusion that granting complainant's request
would have imposed an undue hardship on the agency, and thus concluded
that complainant met her burden of proving disability discrimination.
The AJ ordered four remedies, the fourth of which required the agency
to determine the number of weather events since February of 1996 where
employees with disability were granted excused absences, and credit
complainant with two days (16 hours) leave per event.
The agency's final order rejected the AJ's Decision. The agency neither
disputed the AJ's finding of discrimination nor disputed the first three
remedies ordered by the AJ. However, the agency challenged the remedy
stated above, contending that agency policy permits the granting of �up
to two days� of AL to employees with disability during inclement weather,
as circumstances dictate. The agency stated that since February of 1996
there was only one occurrence for which an employee with a disability
was granted an excused absence. On January 8, 1999, an employee with
a visual impairment was granted four (4) hours of AL, while on the same
date complainant was granted eight hours of LWOP. The agency claims that
as the Rehabilitation Act is remedial in nature, the appropriate remedy
should be to restore the eight hours of LWOP complainant used on January
8, 1999, rather than the 16 hours of leave apparently ordered by the AJ.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 review of the agency's records establishes that the facility's District
Manager found that complainant did not qualify for the agency's inclement
weather policy because her disability was not one of those listed in the
policy, even though complainant's lupus caused her to have numbness in
both hands which left her unable to use them in cold weather, and her
physician stated she had a visual handicap due to macular degeneration,
both of which made it difficult for her to travel in inclement weather.
The District Manager stated that there were two agency employees who
were granted excused absences under the Pierce Memo, with each entitled
to �up to two days� of AL for inclement weather. The Commission notes
that in response to the AJ's Decision finding discrimination, the agency
stated that since February of 1996, there was only one instance where
an employee with a disability was granted an excused absence due to
inclement weather, and that employee was granted four hours of AL.
Initially, we note that under the Rehabilitation Act, the agency
was not required to adopt a policy which provided up to two days of
excused absences for inclement weather in the form of AL to employees it
determined to be disabled. Nevertheless, we agree with the AJ's finding
that once the agency adopted such a policy, it could not arbitrarily
select which disabilities would or would not be included. In addition,
we agree with the AJ's finding that as complainant presented evidence
that she faced extreme hazards traveling in inclement weather due to
her impairments resulting from lupus, she should have been similarly
included under the inclement weather policy. However, due to the agency's
finding that the sole employee provided an excused absence for inclement
weather since February of 1996 was granted a total of four hours of AL,
the Commission agrees with the agency that crediting complainant with
two days (16 hours) of AL is excessive. As such, we find that a proper
remedy is to convert the eight hours of LWOP complainant was required
to take on January 8, 1999 to excused absence.
After a careful review of the record, including arguments and evidence
not specifically discussed in this decision, the Commission MODIFIES
the AJ's final Decision and remands the matter to the agency to take
remedial actions in accordance with this decision and the ORDER below.
ORDER
To the extent it has not already done so, the agency is ORDERED to take
the following remedial action:
The agency shall convert complainant's 27.75 hours of Leave Without Pay
to 27.75 hours of excused absence and reimburse complainant for the money
lost in salary. The sum shall be complainant's hourly rate at the time
the Leave Without Pay was deducted by 27.75 hours.
At the complainant's election, she may, in the alternative, receive
27.75 hours credit leave instead of a cash payment.
The agency shall accommodate complainant in the same manner as other
employees with disabilities are accommodated in inclement weather.
The accommodation will be retroactive to February 1996.
The agency shall convert the eight (8) hours of Leave Without Pay
complainant used on January 8, 1999 to excused absence and shall reimburse
complainant for any money lost in salary. The sum shall be calculated as
complainant's hourly pay at the time the Leave Without Pay was deducted
by eight (8) hours.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or filed your appeal
with the Commission. 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.
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:
July 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
2 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 The Commission notes that as the parties stipulated that complainant
is a qualified individual with a disability and the Administrative Judge
accepted this stipulation as supported by the record, this issue is not
before us on appeal.