Crystal M. Gresham, Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMay 22, 2009
0120071371 (E.E.O.C. May. 22, 2009)

0120071371

05-22-2009

Crystal M. Gresham, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.


Crystal M. Gresham,

Complainant,

v.

Kathleen Sebelius,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 0120071371

Agency No. CDC-0049-2006

DECISION

On January 11, 2007, complainant filed an appeal from the agency's

December 14, 2006 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.

BACKGROUND

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

as a Management and Program Analyst in the Lead Poisoning and Prevention

Branch (LPPB) at the agency's Center for Disease Control in Atlanta,

Georgia. Complainant experienced problems breathing on October 10,

2006, and as a result was hospitalized. The record reveals complainant

was out of work from October 11, 2005, through March 7, 2006, while she

underwent testing and treatment for her medical problems.1

The record contains an October 26, 2005 form entitled "RETURN TO WORK OR

SCHOOL" signed by a nurse practitioner on behalf of Doctor 1. The form

notes complainant has been under Doctor 1's care from October 11, 2005,

through November 28, 2005, and states complainant is seeing a specialist

and cannot return to work. In subsequent forms, Doctor 1 continued to

extend complainant's inability to return to work through March 2006.

These notes do not contain a diagnosis or indicate when complainant will

be able to return to work.

On February 8, 2006, complainant's condition was first diagnosed by Doctor

2 as Chronic Obstructive Pulmonary Disease (COPD). Doctor 2 noted that

complainant has "a moderate level of disease with some persistence of

mild respiratory symptoms" and stated he has "fair control of symptoms."

The doctor noted the condition was chronic and stated that with control

of her symptoms, she could perform "light-duty desk or administrative

clerical work, or other similar type duties." The doctor stated the

"disease process might make it difficult for her to perform work duties

which require extreme physical exertion." Doctor 2 stated complainant's

symptoms were mild and "not currently debilitating, nor incapacitating."

On February 27, 2006, the Chief, Lead Poisoning Prevention Branch,

wrote complainant a letter noting that based on the February 8, 2006

letter from Doctor 2, complainant's symptoms were under "fair control"

and were "not currently debilitating." The letter provided a copy of

complainant's position description and asked complainant to have Doctor

2 review the position description and inform the agency if there are

any activities listed that complainant is unable to perform. The letter

stated that if the agency does not "receive administratively acceptable

medical documentation from her physician," then she must return to work

on March 6, 2006, or will be considered Absent Without Leave (AWOL).

In a March 1, 2006 follow up letter, Doctor 2 clarified complainant

could currently perform sedentary desk duties, but her condition

"may preclude her from performing physical tasks which would cause

exertional shortness of breath." Doctor 2 noted she "may experience

increased shortness of breath, or increased breathing symptoms" if she

were to perform "physically exertional activities, such as walking for

prolonged distances, or any activity requiring prolonged aerobic like

activities."

Complainant returned to work for half a day on March 7, 2006, and also

worked on March 8, 2006. Complainant submitted a form dated March 7,

2006, entitled "CONFIRMATION OF REQUEST FOR REASONABLE ACCOMMODATION" and

asked to work on light duty from her home. In her request, complainant

stated that while at work the past two days, the residual dirt and

dust generated by a construction site near her duty station caused her

respiratory condition to become worse. She stated her condition caused

shortness of breath whenever she performed bending, stooping, lifting,

pushing, pulling, walking short distances. Complainant stated that she

worked the past two days and has "experienced pressure to [her] chest

and severe headaches." Complainant stated she contacted Occupational

Health to have an assessment of her work space and in the meantime she

requested "to work from home until reasonable accommodations can be made

or medical disability is approved."

In a March 8, 2006 letter, Doctor 3 stated that complainant has "severe

fixed obstructive lung disease, atopic disease based on skin testing,

and has a 35-pack year history of smoking." The doctor notes complainant

has concerns that her "workplace environment may be playing a role in

her disease." Doctor 3 noted complainant is being evaluated for possible

"occupational lung disease and for a determination of disability."

The record contains a form entitled "Certification of Health Care Provider

(Family and Medical Leave Act)." The form is signed by Doctor 1 and is

dated March 10, 2006. The form states complainant is "Incapacitated -

not able to work." Under question 7, when asked if complainant is able

to perform work of any kind, the doctor answered "No."

In a March 10, 2006 letter, Doctor 1 noted complainant visited a

pulmonary specialist on March 8, 2006. Doctor 1 stated complainant

should not return to work until an assessment is completed by the agency

"to determine if her work environment is suitable for her diagnosis of

Chronic Obstructive Pulmonary Disease (COPD)."

On March 28, 2006, complainant's request for reasonable accommodation and

medical documentation was forwarded to the Office of Health and Safety

(OHS) for review by an agency physician. In an April 10, 2006 letter,

the agency's physician agreed with the March 10, 2006 assessment by

complainant's physician that complainant is incapacitated and unable

to work. The agency also noted that the requested accommodation would

require the removal of an essential function and/or would require the

lowering of performance or production standards. Thus, the agency denied

complainant's request to work from home and light duty.

On June 8, 2006, complainant filed an EEO complaint alleging that she was

discriminated against on the bases of race and disability. In its June

30, 2006 letter accepting complainant's complaint, the agency defined

the complaint as alleging discrimination and harassment based on race

(Black) and disability when:

1. Beginning October 5, 2005, and continuing complainant was denied

advance sick leave and participation in the leave donation program; and

2. On June 5, 2006, complainant's request for a reasonable accommodation

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). In accordance with

complainant's request, the agency issued a final decision pursuant to

29 C.F.R. � 1614.110(b). The decision concluded that complainant failed

to prove that she was subjected to discrimination as alleged.

On appeal, complainant claims that the EEO Investigator failed to include

information from all of her identified witnesses. Complainant identifies

individuals who she claims could have provided relevant information

concerning her complaint. With regard to the claim that she was denied

advanced sick leave, complainant claims that she had no history of abusing

leave and states there was no legitimate reason to deny her request.

She claims her physicians gave a legitimate reason why she could not

return to work.

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").

At the outset, we find the record was properly developed. Specifically,

we note the record contains affidavits from complainant and all

relevant agency personnel. Additionally, complainant submitted a

rebuttal affidavit in which she responded to the statements made by

the responsible management officials. Further, the record contains the

relevant documentation surrounding complainant's medical condition, her

request for reasonable accommodation, and her request to participate in

the agency's Voluntary Leave Transfer Program (VLTP).

Upon review, we find the agency articulated legitimate, non-discriminatory

reasons for its action. The agency stated it denied complainant's request

for advanced leave at the time it was submitted due to complainant's

failure to provide sufficient medical documentation to support this

request, such as diagnosis, prognosis, and expected return date.

With regard to the denial of her request to participate in the VLTP,

the agency stated it denied complainant's request to participate in

the program beginning October 2005, based on the fact that she had 279

hours of annual leave and 169 hours of sick leave available for use as of

that time. With regard to complainant's second request to participate

in the VLTP, the agency explained it denied her request because the

medical documentation she submitted at the time stated complainant was

not incapacitated or debilitated. The agency stated that complainant's

third request for participation in the VLTP was denied because complainant

failed to submit any new medical documentation which would have negated

the statement submitted in the second request that complainant was

not incapacitated or debilitated. Complainant has failed to show that

the agency's articulated reasons for its actions was a pretext to mask

prohibited discrimination.

With regard to her claim of a hostile work environment, we note that

complainant claimed she was subjected to harassment in connection with the

agency's actions in denying her advanced sick leave, VLTP participation

and reasonable accommodation. Upon review, we find complainant failed

to show that the actions alleged were considered sufficiently severe or

pervasive to constitute actionable harassment. Moreover, complainant

failed to show that any of the identified actions were based on her race

or disability.

With regard to her denial of accommodation claim, the record reveals

that on March 7, 2006, complainant requested she be accommodated with

light duty work from her home. We note that the agency permitted

complainant to work from home while it was evaluating her reasonable

accommodation request. Moreover, we note the March 10, 2006 statement

from complainant's doctor, that complainant is unable to work at all

and the agency's physician concurred with her doctor. Furthermore,

we note complainant does not claim that she was forced to work beyond

her restrictions.2

Accordingly, the agency's final 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

May 22, 2009

__________________

Date

1 Complainant submitted an application for Disability Retirement

on February 6, 2006. The agency forwarded complainant's disability

retirement letter to the Office of Personnel Management.

2 We do not address in this decision whether complainant is a qualified

individual with a disability.

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0120071371

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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