01A53115
08-02-2006
Dorothy J. Genton, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Dorothy J. Genton,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A53115
Hearing No. 160A40409X
Agency No. 033185
DECISION
On March 17, 2005, complainant filed an appeal from the agency's February
17, 2005 final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of 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.
At the time of events giving rise to this complaint, complainant worked as
a Supply Technician (Inventory), GS-7, at the U.S. Mint in West Point,
New York. On June 3, 2003, complainant contacted an EEO Counselor
and filed a formal EEO complaint on July 16, 2003, alleging that she
was discriminated against on the basis of disability (impairment: sleep
disorder) when she was not provided with the reasonable accommodation of
assigning her to the first or second shift (instead of the third shift).1
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 assigned to the case issued a "bench"
decision without a hearing on February 4, 2005, finding no discrimination.
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.
In his decision, the AJ first found that complainant failed to establish
that she is disabled pursuant to the Rehabilitation Act. He found that
although complainant's physician listed complainant's conditions or
impairments as hypertension and adjustment disorder with symptoms of
chest tightness, mood swings and irritability secondary to working the
third shift from midnight to 8:30 a.m., complainant failed to proffer
evidence to establish that she is substantially limited in any major
life activity due to these conditions or impairment. The AJ further
noted that complainant's evidence in support of her disability consisted
only of two notes dated August 15, 2002, and September 17, 2002 from
her doctor describing her symptoms, and requesting that complainant
be switched from the third shift. The AJ found that neither of these
reports provides any information concerning the effect that complainant's
hypertension and adjustment disorder secondary to working on the third
shift have upon a major life activity. The AJ noted that complainant
states in her affidavit that the only major life activity affected by
her disability is "Working, I lost my job."
The AJ further found that complainant failed to establish that she is
substantially limited in the major life activity of sleeping, noting
that although sleeping is a major life activity, an individual is not
substantially limited in sleeping if she has trouble getting to sleep or
sometimes sleeps fitfully. The AJ cited to the Commission's Enforcement
Guidance on the Americans with Disabilities Act and Psychiatric
Disabilities (Enforcement Guidance), No. 915.002 at Question 11 (March
25, 1997). The AJ further noted that complainant's problems seem to
have been caused solely as a result of working the night shift; that is,
when she is not working the night shift, she has no problems. The AJ
found that even if it is assumed that complainant has an impairment that
causes her difficulty sleeping when on the night shift, the evidence
does not establish that it is substantially limiting. The AJ noted
that complainant failed to produce or proffer any details as to the
degree to which her sleep is affected or the frequency of her sleep
problems even as they relate to her hypertension and Adjustment Disorder.
The AJ further noted that neither the opinion of a licensed physician,
nor a finding by another agency (i.e. The U.S. Department of Labor)
that a person is "disabled" is controlling on the issue of whether a
complainant has a disability under the Rehabilitation Act.
The AJ then found that even if complainant had a disability, the agency
is not required to reassign complainant to the first or second shift as a
reasonable accommodation because to do so would violate the collective
bargaining agreement. The AJ cited to U.S. Airways v. Barnett,
535 U.S. 391 (2002) and the EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, EEOC Notice No. 915.002 (October 17, 2002).
The AJ acknowledged that the EEO Guidance makes clear that there are
"special circumstances" under which it may be a "reasonable accommodation"
absent undue hardship to reassign an employee, despite the existence
of a seniority system. The AJ found however, that here, complainant
has proffered no evidence to establish any such special circumstances.
The AJ noted that for example, complainant alleges that the agency has
granted accommodations to others; however, she has proffered no evidence
to establish that any such individuals were similarly situated to her
and, more importantly, she has not proffered any evidence to establish
that the agency granted other employees a change in shift without regard
to seniority. Accordingly, the AJ found no discrimination in this case.
On appeal, complainant reiterates arguments previously made.
In particular, she insists that she is disabled and that the agency
accommodated others (names of such individuals are not given and their job
titles are not identified) while refusing to accommodate her. She also
suggests that the agency improperly failed to find her a new position.
The agency makes no new arguments in reply.
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (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").
Here, we shall assume arguendo that complainant is a qualified
individual with a disability. In U.S. Airways Inc., v. Barnett, 535
U.S. 391 (April 29, 2002), the United States Supreme Court addressed
the question whether the interests of a disabled employee who seeks
reassignment to a particular position as a request for an accommodation
trumps the interests of other workers with superior rights to bid under
an employer's seniority system. In Barnett, the Court found that the
seniority system will prevail in the run of cases. The Court further
noted, however, that the plaintiff remains free to present evidence of
special circumstances that make "reasonable" a seniority rule exception
in the particular case. See id., at 393. The instant case is similar
to Barnett in that complainant remains free to present evidence of
special circumstances2 that make it "reasonable" that complainant's need
for a shift change should trump the right of others to work the shift
upon which they bid, and to which they are entitled due to seniority.
Here, however, we concur with the AJ's finding that complainant has not
presented evidence of special circumstances.3
To the extent that complainant asserts that the agency should have
reassigned her to a different position at the agency, we find that
complainant has not identified a vacant, funded position with duties that
she could perform. We note that absent evidence of a particular vacant
position, evidence that a vacant funded position existed may be inferred
based on documentary or testimonial evidence regarding, inter alia: (1)
complainant's qualifications; (2) the size of the agency's workforce; and
(3) indicia of postings and/or selections during the pertinent time period
within classes of jobs for which complainant would have been qualified.
See Barnard v. United States Postal Service, EEOC Appeal No. 07A10002
(August 2, 2002). Here, however, complainant also failed to develop
this evidence, and it is her burden to do so.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue of
material fact is in dispute. See Petty v. Department of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). Further, construing the evidence
to be most favorable to complainant, we conclude that complainant failed
to present evidence from which a reasonable fact finder could conclude
that she was denied reasonable accommodation within the meaning of the
Rehabilitation Act. Therefore, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 (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:
August
2,
2006
______________________________ __________________
Carlton M. Hadden, Director
Date
Office of Federal Operations
1 Complainant notes that at the time she interviewed for her position
she was asked if she would be willing to change shifts if necessary,
and she stated that she was willing. She states however, that she was
never asked if she was certain she would be able to physically adjust
to third shift hours (midnight to 8:30 a.m.). Complainant asserts that
several months later, the Partnership Committee changed the way in which
seniority is determined. Complainant states that by basing seniority
on the criterion of who was first in the building, complainant fell
to the bottom of the seniority list. Complainant indicates that in
February 2002, she was told she was being moved to the third shift.
She subsequently requested the reasonable accommodation of assignment
to the first of second shift, and when she was denied, she sought EEO
counseling.
2 For example, "special circumstances" may exist where an employer
retains the right to alter the seniority system unilaterally, and has
exercised that right fairly frequently, thereby lowering employee
expectations in the seniority system. In this circumstance, one
more exception (i.e., providing the reassignment to an employee with
a disability) may not make a difference. Alternatively, a seniority
system may contain exceptions, such that one more exception is unlikely
to matter. Another possibility is that a seniority system might contain
procedures for making exceptions, thus suggesting to employees that
seniority does not automatically guarantee access to a specific job.
See EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, EEOC Notice
No. 915.002 at, Question 31 (October 17, 2002).
3 Complainant's supervisor indicates that from August 22 to September
19, 2003, complainant was accommodated in a temporary position on the
second shift. See Report of Investigation, at 116. She further states
that management asked for volunteers to switch shifts with complainant,
however, the response was very negative. Id., at 117. She further
stated "Granting the complainant's request for accommodation would have
violated the collective bargaining agreement because you are placing a
person with lowest seniority over someone with more seniority. I have
heard various rumors that if this was allowed, each person that was
made to go to third shift so that the complainant would be able to go
to first or second shift, would bring in a doctor's note stating they
can not work third shift." Id.
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01A53115
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036