01992572
02-01-2002
Emma V. F. Hinnant, Complainant, v. Spencer Abraham, Secretary, Department of Energy Agency.
Emma V. F. Hinnant v. Department of Energy
01992572
February 1, 2002
.
Emma V. F. Hinnant,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy
Agency.
Appeal No. 01992572
Agency No. 98(050)AL
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,<1>
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final decision.
The record reveals that during the relevant time, complainant was
employed as a Administrative Clerk at the agency's Kansas City Area
Office in Kansas City, Missouri (facility). Complainant sought EEO
counseling and subsequently filed a formal complaint on February 6, 1998,
alleging that she was discriminated against on the bases of disability
(arthritic osteoporosis), age (D.O.B. 12/22/33), and reprisal for prior
EEO activity arising under Title VII, the ADEA and the Rehabilitation
Act. Complainant alleges that she was discriminated on the basis on
disability when no ramp was provided at the front of the building where
she works. Regarding the basis of age, complainant alleges she was
treated differently than a younger person (CW) when her request for
reasonable accommodation was not approved as quickly as CW's request.
Finally, with respect to the basis of retaliation, complainant alleges
that because she filed a complaint in 1992, her supervisor (RMO) charged
her with being Away Without Leave (AWOL) for her absence from work between
October 16, 1997, and October 22, 1997, instead of Administrative Leave,
as she requested.<2>
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision finding no
discrimination on the bases of disability or reprisal. The agency did
not address the incident complained of on the basis of age as it had
previously dismissed this portion of the complaint. Complainant herein
appeals this final decision and the agency requests that we affirm
its FAD.
ANALYSIS
Reasonable Accommodation
Complainant states in her complaint that the agency failed to put a ramp
at the main entrance of the facility, making the facility inaccessible
to her. She states in her affidavit that she has to enter the facility
using a ramp at the east end of the facility which is approximately
700 feet from her work station. She further states that she is made
to feel different from other employees because she has to use this east
entrance instead fo the main entrance. In its FAD, the agency concluded
that it had accommodated complainant in that it has provided complainant
with a ramp to access the building, a parking space near said ramp and a
motorized scooter on which to get around. On appeal, complainant states
that �there is an operational ramp at the main entrance to the facility
. . . but [I] am not able to use it.� Complainant does not state why
she is unable to use the main entrance ramp. Thus, the Commission has
no indication as to whether the complainant is alleging she is being
denied permission to use the ramp or whether she physically unable to
use the ramp because of the ramp's design. Further, the record does not
indicate either how many entrances there are to the facility or how many
of the entrances have ramps.
We will assume, for purposes of this appeal, that there is an east
entrance and a main entrance to the facility. We will further assume that
only the east entrance has a ramp. To establish a case of discrimination
based on a failure to accommodate a disability, complainant must show:
(1) that she is an individual with a disability and (2) that she is a
qualified individual with a disability, in that she is qualified for
and can perform the essential elements of the position held or desired
with or without reasonable accommodation. Cansino v. Department of
the Army, EEOC Request No. 05960674 (Aug. 27, 1998) (citing Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981)).
An individual with a disability is one who: 1) has a physical or mental
impairment that substantially limits or restricts one or more of his
or her major life activities; 2) has a record of such impairment; or
(3) is regarded as having the impairment. See 29 C.F.R. � 1630.2(g).
Major life activities include functions such as self care, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. See 29 C.F.R. � 1630.2(i).
Assuming, arguendo, that complainant is a qualified individual with
a disability, we find that the agency has provided her a reasonable
accommodation. The record indicates that complainant was given viable and
reasonable access to the facility in that the agency provided her with
a parking space near the ramped east entrance and a scooter to make her
way around. While this entrance is 700 feet further from complainant's
work space, we note that she is traversing those 700 feet via scooter, and
thus not exacerbating her physical condition. Complainant is not entitled
to the accommodation of her choice. As a qualified individual with a
disability, complainant is entitled only to an effective accommodation.
There is no indication by the complainant on appeal that the ramp she was
asked to use was unusable because of physical specifications, was in an
area particularly difficult or dangerous to navigate, or was located in
an area that was otherwise undesirable. The mere fact that it was not the
front entrance is not enough to render the accommodation ineffective.<3>
Age Discrimination
Regarding the incident of discrimination based on her age, complainant
alleged that a younger person's disability was accommodated quickly while
hers was not. The agency dismissed this component of complainant's
complaint for untimely counselor contact on March 24, 1998.<4> The
agency, by certified mail, provided complainant with its FAD detailing
the dismissal. A copy of the certified mail return receipt card reveals
that the FAD was received at complainant's address of record on March
28, 1998. A review of the FAD reveals that the agency properly advised
complainant that she had thirty (30) calendar days after receipt of its
final decision to file her appeal with the Commission. Therefore, in
order to be considered timely, complainant had to file her appeal no later
than April 27, 1998. Complainant has not offered adequate justification
for an extension of the applicable time limit for filing her appeal.
Accordingly, complainant's appeal of this incident is hereby DISMISSED.
See 29 C.F.R. � 1614.403(c).
Reprisal
With respect to the issue of discrimination based on retaliation, the
Commission concurs with the agency's determination that complainant
failed to establish a prima facie case. 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, 411 U.S. at 802). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, and 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) she engaged in a protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
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 26, 2000).
Herein, we find that no nexus exists between complainant's protected
activity in 1992 and the adverse treatment in 1997. The five years
between complainant's protected activity and the adverse treatment does
not support an inference of retaliation, and there is no other evidence to
support a nexus. Moreover, the reason for the treatment was explained;
administrative leave is only available under limited circumstance and
complainant's absence was not one of those circumstances.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 1, 2002
__________________
Date
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.
2 The Commission notes that the FAD addresses each incident under each
named basis of discrimination. Complainant appears, however, to have
only intended each incident to be addressed on one basis, not all three,
as set out herein.
3 For a listing of accessibility guidelines, see www.access-board.gov.
Further, the Uniform Federal Accessibility Standards (UFAS) can be found
at http://www.access-board.gov/ufas/ufas-html/ufas.htm#4.14.
4 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. The partial dismissal
herein was not prohibited under the regulation in effect in 1998.
The regulations, as amended, may also be found at the Commission's
website at www.eeoc.gov.