0120090306
12-08-2011
Florine Matthews, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Headquarters) Agency.
Florine Matthews,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Headquarters)
Agency.
Appeal No. 0120090306
Hearing Nos. 570-2007-00406X, 440-2007-00204X
Agency Nos. 6X-000-0050-06, 6X-000-005706, 6X-000-0022-07
DECISION
On October 14, 2008, Complainant filed an appeal from the Agency's September 10, 2008, notice of final action 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's notice of final action.
BACKGROUND
The record reveals that in May 2002, Complainant began working in the Agency's EEO Department as an EEO Dispute Resolution Specialist, EAS-17, for the Northern Illinois District. In May 2004, Complainant was detailed to the Agency's Labor Relations Department as a Labor Relations Representative, EAS-19, for the Northern Illinois District. In June 2005, Complainant returned to her position as an EEO Dispute Resolution Specialist, EAS-17, with the EEO Department. During this time the Agency was reorganizing its EEO functions nationwide. The Agency consolidated many of its local EEO functions and transferred them to its operations in Tampa, Florida.
As a result of the reorganization, several positions, including Complainant's position, were eliminated. Those affected by the reorganization were forced to find different positions. Complainant applied for the position of EEO Alternative Dispute Resolution (ADR) Specialist, EAS-19. Complainant was selected for two ADR Specialist positions located in the Northern Illinois District and the Dallas District. Complainant chose the position in Dallas, Texas. Complainant's reassignment from the EEO Resolution Specialist position in the Northern Illinois District to the ADR Specialist position in Dallas was a promotion from an EAS-17 level position to an EAS-19 level position. Complainant's promotion took effect on October 1, 2005; however, she did not report to Dallas, Texas until October 24, 2005.
Complainant filed an EEO complaint (Agency No. 6X-000-0050-06) dated September 2, 2006, which was subsequently amended, in which she alleged that the Agency discriminated against her on the bases of race (Black), national origin (African-American), sex (female), color (black), disability (depressed mood anxiety and sleeping disorder), and in reprisal for prior protected EEO activity when:
1. On May 1, 2006, management denied Complainant's request for reconsideration of her fiscal year 2005 performance rating.
2. Since May 2004, Complainant has been subjected to ongoing harassment.
3. On October 26, 2006, management cancelled a vacancy announcement that Complainant applied for in August 2006.
4. On November 14, 2006, the Agency failed to issue Complainant a full paycheck.
5. Management instructed Complainant to report back to Dallas after testifying in a district court trial on October 30, 2006.
The Agency dismissed issue (5) pursuant to 29 C.F.R. � 1614.107(a)(1), on the grounds that Complainant was not aggrieved as a result of being instructed to report back to Dallas after her testimony. The Agency accepted issues (1) - (4) for processing.
At the conclusion of the investigation, the Agency provided Complainant 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 in Agency No. 6X-000-0050-06. Complainant submitted her hearing request to the EEOC's Washington Field Office (WFO), which was the office identified in the Agency's transmittal letter. The WFO issued an acknowledgment letter in this case on May 4, 2007, and the case was assigned to AJ1.
Complainant filed a second EEO complaint (Agency No. 6X-000-0057-06) dated November 21, 2006, alleging that she was subjected to discrimination on the bases of race (African-American), color (black), national origin (African-American), disability (sleep disorder, depression, anxiety), and in retaliation for prior EEO activity) when: from February, 2005 to the present she has been harassed, denied a lateral assignment, and denied a reasonable accommodation.
On December 10, 2006, the Agency accepted Complainant's claim of harassment and failure to accommodate. In May 2007, Complainant requested a hearing in Agency No. 6X-000-0057-06. The EEOC's Chicago District Office acknowledged receipt of Complainant's hearing request and the case was assigned to AJ2.
In a letter dated June 1, 2007, Complainant notified AJ1 and AJ2 that she had four pending EEO matters: an appeal pending before the Office of Federal Operation (Agency No. 4J-600-0067-06/ OFO Docket Number 0120071095) , a case pending before the Washington Field Office (6X-000-0050-06), a case pending before the Chicago District Office (6X-000-0057-06), and an informal complaint initiated on March 5, 2007 (later identified as 6X-000-0022-07) pending before the Agency. Complainant requested that all her EEO cases be consolidated for adjudication under one Administrative Judge. The Agency did not object to consolidation.
The Commission consolidated all of the cases (except the appellate matter) before the Chicago District Office. In an Order dated June 12, 2007, AJ1 issued an Order in 6X-000-0050-06 transferring the matter from the Washington Field Office to the Chicago District Office to be consolidated with 6X-000-0057-06. AJ1 also ordered the Agency to terminate its processing of the new Complaint (6X-000-0022-07) initiated on March 5, 2007, and to forward this case file to the Chicago District Office.
With regard to the informal complaint initiated on March 5, 2007, Complainant proceeded to file a formal complaint in this matter. In her third formal complaint (Agency No. 6X-000-0022-07) dated June 18, 2007, Complainant alleged that she was subjected to discrimination on the bases of disability and in reprisal for prior protected EEO activity when: since March 5, 2007, and ongoing, management has denied Complainant reasonable accommodation and has prohibited Complainant from returning to work.
On June 21, 2007, Complainant moved to have all of her cases adjudicated by AJ1 on the grounds that: (l) AJ1 has "greater knowledge of the chronological order of [her] allegations"; (2) "there is a long lasting working relationship between AJ2 and the entire Northern Illinois District, Law Department, EEO Office, and the Labor Relations Department and could be misconstrued as showing favoritism toward the Agency"; (3) Complainant is not under the jurisdiction of the Chicago District Office, but rather under the jurisdiction of the Washington Field Office; and (4) she has "had a direct relationship with AJ2 in the past by processing numerous EEO investigations throughout the Northern Illinois District from 1997 until approximately 2000."
On June 25, 2007, the EEOC ordered Complainant to "identify her claims of discrimination in this consolidated matter and identify the alleged discriminating official for each of her discrimination claim and identify the location where the alleged discrimination occurred by July 5, 2007." AJ's June 25, 2007 Order. Complainant filed a response to this dated June 30, 2007, but did not specify the location where the alleged discrimination occurred. However, Complainant identified the management officials who were responsible for the discrimination alleged in this consolidated case and their place of assignment.
On July 10, 2007, the EEOC consolidated pending cases (except the pending appellate matter) to be heard at the Chicago District Office. The EEOC noted there was no showing that AJ1 has any detailed knowledge of the facts and allegations of this matter. The EEOC noted the record shows that the parties did not file any routine or substantive motions with AJ1 or that AJ1 rendered any "substantive decisions during the one month period he presided over the matter." Additionally, the EEOC noted that, despite Complainant's assertion, there is no evidence that the Chicago District Office is biased against Complainant. Additionally, the EEOC stated that Complainant failed to provide any facts or legal arguments to support her allegation that she does not fall within the jurisdiction of the Chicago District Office. The EEOC noted that for Agency No. 6X-000-0057-06, Complainant voluntarily requested a hearing before the Chicago District Office instead of moving the Washington Field Office to consolidate the matter with 6X-000-0050-06. Finally, the EEOC found the Chicago District Office was the most suitable place to adjudicate this consolidated matter as five of the eight management officials identified are either in Illinois or closer to Illinois than Washington, D.C. The EEOC also noted that the official critical to all three cases, Person B, and Complainant are both in Illinois. Thus, the EEOC denied Complainant's motion for change of venue.
The Agency filed a motion for summary judgment dated December 21, 2007. In an Order dated December 27, 2007, AJ2 notified Complainant that she has until February 15, 2008, to file a response to the Agency's motion for summary judgment. Complainant filed a rebuttal to the Agency's motion for summary judgment dated February 12, 2008. AJ2 granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on September 4, 2008.
In his decision, AJ2 defined the issues in Complainant's complaints as whether the Agency subjected Complainant to unlawful harassment and disparate treatment because of her race, color, sex, disability and prior EEO activity when:
1. In May 2004, management subjected her to harassment in that: (a) Person A assigned her twice the amount of work as some of her peers after she started her detail on May 24, 2004; (b) Person A aggravated her during her detail and attempted to "run" her out of the Labor Relations Department; (c) Person A made unfavorable comments to her during staff meetings; (d) Person A would pass by her office and not speak while she laughed and had conversations with Complainant's peers; (e) Person A did not assign Complainant as the Labor Representative in Palatine; (f) management failed to recognize her at the end of fiscal year meeting and celebration in September 2005; and (g) management held a pre-disciplinary interview in connection with Complainant having left the end of fiscal year meeting and celebration early without permission.
2. Management denied her request for a lateral transfer, submitted on or about February 28, 2006, and advised her on April 26, 2006, that another employee had been awarded the position for which she had sought the transfer.
3. On May 1, 2006, management denied her appeal of her performance rating for Fiscal Year 2005.
4. Management denied her request for a reassignment/transfer into the position at Carol Stream, Northern Illinois District, submitted on or about June 1, 2006.
5. On July 11, 2006, management did not allow her to work from her home in Illinois and instructed her to report to work at the Chicago District Office 35 miles from her Illinois home.
6. On July 27, 2006, Person B chastised her for an electronic mail message she had sent.
7. On October 26, 2006, management announced during a telecom to all Southwest Area EEO personnel that a certain vacancy, which she had applied for in August 2006, would not be filled.
8. On November 14, 2006, management failed to pay her the correct wage amount.
9. On March 8, 2007, and ongoing, management denied her reasonable accommodation and prohibited her from returning to work based on her doctor's restrictions.1
In his decision, AJ2 found Complainant failed to show that she was subjected to harassment or discrimination as alleged. The Agency subsequently issued a notice of final action on September 10, 2008. The Agency fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that AJ2 is biased in favor of the Agency. Complainant states that she has an established working relationship with AJ2 as a result of her tenure working with EEO from 1997 through 2002 and she alleges AJ2 is known for ruling in favor of the Agency.
Complainant argues that her case should have been assigned to AJ1 in the Washington Field Office. She states that her Form 50 indicates that she is assigned to Washington, D.C. with a duty station in Dallas, Texas and no longer had any association with the Northern Illinois District and therefore she argues her case should not have been processed at the EEOC's Chicago District Office.
Complainant alleges that the Agency's motion for summary judgment was untimely submitted to the AJ. Complainant states that under AJ2's October 26, 2007 Order, the Agency had until December 21, 2007, to file a motion for summary judgment. Complainant notes that in his decision, AJ2 stated that the Agency moved for summary judgment on December 26, 2007, which she claims was untimely.
Additionally, Complainant states she submitted affidavits and medical documentation from her physicians which she alleges AJ2 did not consider. Complainant also notes that it took AJ2 seven months to adjudicate her EEO case after he received her response in opposition to the Agency's motion for summary judgment. Moreover, Complainant claims she was best qualified for the position in the Northern Illinois District.
Complainant also argues that AJ2 misquoted her alleged bases of national origin and sex discrimination. She states that her claim of national origin discrimination was improperly dismissed by AJ2. She states that her national origin is African-American because her ancestors originated in Africa. With regard to her claim of sex discrimination, she explains that this relates to the Equal Pay Act and not gender.
ANALYSIS AND FINDINGS
At the outset, we note that there is no evidence that Complainant challenged the Agency's dismissal of issue (5) in Agency No. 6X-000-0050-06 before the AJ or on appeal. Thus, we will not consider the propriety of the Agency's dismissal of issue (5) in the present appeal.
On appeal, Complainant claims AJ2 misidentified two of the bases in her complaint: national origin and sex discrimination. We find Complainant's claim that she was subjected to discrimination based on her national origin (African-American) should not have been summarily dismissed by AJ2. Thus, we will address her claim of discrimination based on national origin (African-American) in the present decision. With regard to her identified basis of sex, Complainant states that this claim relates to the Equal Pay Act; however, Complainant did not allege that she received less pay than an individual of the opposite sex for equal work, and thus, we do not address an Equal Pay Act claim in this decision. Additionally, we note that on appeal Complainant does not challenge the definition of the issues as outlined in the AJ's decision.
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 for 29 C.F.R. Part 1614, Chap. 9, � VI.A. (Nov. 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").
With regard to Complainant's contention that her cases should have been assigned to AJ1 at the Washington Field Office, we find no abuse of discretion with regard to the decision to have Complainant's three cases consolidated before AJ2 in the Chicago District Office. We find AJ2 properly determined Complainant failed to provide any facts or legal arguments to support her allegation that she does not fall within the jurisdiction of the Chicago District Office. Additionally, the record reveals that five of the eight management officials identified in this case are either in Illinois or closer to Illinois than Washington, D.C. Further, we note that Complainant herself was residing in Illinois at the time her case was pending before AJ2 in the Chicago District Office. Finally, despite Complainant's assertion, we find no evidence indicating AJ2 was biased against Complainant.
Regarding Complainant's argument that the Agency failed to timely file its motion for summary judgment, we note that an AJ has broad discretion in the conduct of a hearing, to include waiver of a time limit. See 29 C.F.R. � 1614.604(c). Here, even assuming that the motion was untimely, we find no abuse of discretion because no harm resulted to Complainant, nor does Complainant claim any harm. Moreover, AJ2 afforded Complainant until February 15, 2008, to file a response to the Agency's motion for summary judgment. The record reveals Complainant timely filed a response to the Agency's motion, which was considered by the AJ2 prior to the issuance of his decision.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing. Moreover, we find the record in the present case was fully developed. Under these circumstances, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
To establish a claim of harassment, a Complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the Complainant's statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
With regard to issue (1), Complainant alleged that she was subjected to a hostile work environment during her detail to the Labor Relations Department. With regard to incidents (1)(a) and (1)(b), Complainant failed to identify any material facts to support these allegations. With regard to issue (1)(f), the record shows that Complainant was recognized at the end of the year celebration; however, she left prior to her name being announced. As a result of her leaving early from the end of fiscal year meeting without permission, Complainant was subject to a pre-disciplinary interview, as described in issue (1)(g). Complainant failed to show that the pre-disciplinary interview occurred because of Complainant's membership in any of the alleged protected classes. With regard to the remaining incidents of alleged harassment, we find Complainant failed to show that these actions were sufficiently severe or pervasive to constitute harassment. Moreover, Complainant failed to show that any of the alleged incidents of harassment occurred because of her membership in any of the alleged protected classes.
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
With regard to issue (2), Complainant states that her request for a lateral transfer was denied while another employee, Employee Y, was initially awarded the position that Complainant sought. The record reveals that on February 28, 2006, Complainant wrote to Postal Headquarters, requesting a non-competitive reassignment to an EEO ADR Specialist position in Carol Stream, Illinois, which she had applied for in response to Vacancy Announcement Number 12065. The Agency denied Complainant's request for a lateral reassignment. The Selecting Official stated that she wanted to assess the Knowledge, Skills, and Abilities of all the applicants who applied for the EEO and thus, decided to fill the position competitively. Person Y was recommended for the position. Complainant complained about Person Y's selection and the Agency cancelled the position and decided to repost the position. Complainant failed to show that the Agency's actions surrounding her request for a lateral transfer were based on discriminatory animus.
With regard to issue (3), Complainant alleges that management denied her appeal of her performance rating for Fiscal Year 2005. The record shows that despite Person A telling Complainant on two occasions to complete her end of year accomplishment report, the report was not completed timely.2 Person C, the deciding official, was not aware of Complainant's race, color, national origin, or prior protected EEO activity at the time she denied Complainant's appeal. The record reveals that Complainant was one of six employees who requested reconsideration of their FY 2005 performance ratings. Of those six, only one was granted reconsideration: Employee X who was the same race, color, national origin, and sex as Complainant. In the present case, Complainant failed to show that Person C's reliance on the fact that Complainant failed to submit her end of year accomplishment report on time was a pretext for discrimination.
With regard to issue (4), Complainant claimed that she was subjected to discrimination when management denied her June 1, 2006 request to transfer to the Carol Stream, Northern Illinois District. The record reveals that in June 2006, Complainant submitted a request for a hardship transfer based on her mother's health. In response to Complainant's request, Person C stated that the Agency cannot automatically grant Complainant's request. Person C stated that the Agency's EEO function was in the midst of restructuring and some positions were eliminated. Person C explained that vacancies were being posted in phases for those employees who were impacted by this change. Person C noted that the position Complainant sought, if not filled during phase two, will not be available to non-impacted employees until the third phase of the process which was slated for August 2006. In effort to assist Complainant, the Agency permitted Complainant to work temporarily from Illinois while she cared for her mother. Complainant failed to show that the Agency's articulated reason for its actions was a pretext for discrimination.
With regard to issue (5), Complainant alleges that she was discriminated against when on July 11, 2006, she was not allowed to work from her home in Illinois and was instructed to report to work at the Chicago District Office 35 miles from her Illinois home. The record reveals that Complainant worked in the Dallas Office from October 2005, until June 30, 2006. Complainant moved back to Illinois on July 1, 2006, despite the fact that she was unable to obtain a position in Illinois. Following her request to work in Chicago to assist with her mother's health issues, Complainant's supervisor permitted her to work in Illinois even though her duty station was in Texas. Initially Complainant was permitted to work from her mother's home in Illinois; however, on July 11, 2006, management instructed her that she must report to the Chicago District Office to continue with her temporary work arrangement. Person G stated that he canvassed the managers within the three Chicago metro area (Chicago, Northern Illinois, Central Illinois), and the only location with any available space for Complainant to temporarily work from was at the Chicago District, which was 35 miles from where she was residing. Person D stated that the Complainant was required to work in an Agency facility because the Agency wanted her to use Agency equipment and internet connections and for liability concerns. Complainant failed to show that the Agency's actions were a pretext for prohibited discrimination.
With regard to issue (6), Complainant alleged that on July 27, 2006, she was chastised by Person B for an electronic mail message while she was at a Conference. The record reveals that during an electronic mail message regarding the scheduling of Complainant's attendance at a district court trial and the Conference, Complainant sent an electronic mail message to Person B, the Regional Manager, and carbon copied four other managers, declaring that Person B was "wrong" in his prior electronic mail message, that he had no business interfering with the scheduling of Complainant's attendance at the conference, and that he should let Person D handle the matter. Report of Investigation (ROI) for Agency No. 6X-000-0057-06, Exhibit 24. Person B stated he considered the tone and language in Complainant's response to be unprofessional, disrespectful, and unacceptable. He stated that he verbally counseled Complainant about the electronic mail message at the Conference which lasted 5-10 minutes with Person D, her immediate supervisor present. Complainant did not receive discipline for sending the electronic mail message. Upon review, we find Complainant failed to show that the Agency's actions were motivated by discriminatory animus.
With regard to issue (7), Complainant alleged that she was subjected to discrimination when she was made aware that the vacancy she applied for in August 2006 would not be filled. The record reveals that in August 2006, Complainant requested a noncompetitive lateral reassignment to the vacant EEO ADR Specialist position in Carol Stream, Illinois. The Agency informed Complainant it would consider her in the competitive process for this position. Person C stated that subsequently management at the Agency's Headquarters location asked her to reduce two of the vacant positions in Region 2. Region 2 encompassed the EEO positions in the Great Lakes and Southwest Areas. At the time, the Agency had four vacancies in the Great Lakes Area and three vacancies in the Southwest Area. Person C had the two Managers of Dispute Resolution in the Great Lakes Area and the two Managers of Dispute Resolution in the Southwest Area review one year of EEO Informal complaint activity for both areas collectively. After examining the statistics on these locations, the Agency determined that, based on workload volumes and the best use of encumbered staffing, they would eliminate two of the vacancies in the Great Lakes Area (Detroit and Northern Illinois districts) to meet their complement reduction. One of the vacancies was the Carol Stream position Complainant sought. Therefore, the vacancy for which the Complainant applied was reverted, along with another vacancy in the Great Lakes Area, in order to attain the complement reduction. Upon review, we find Complainant failed to show that the Agency's actions were based on discriminatory animus.
In issue (8), Complainant alleges that management failed to pay her the correct wage amount on November 14, 2006. The Agency acknowledges that they made an error in entering Complainant's leave information for the pay period in question. The record shows that as soon as management learned of the error, they took prompt action correct it and Complainant was paid in full by the next pay period. Complainant failed to present any evidence that the Agency's error was deliberate or that it was made because of Complainant's membership in a protected class.
With regard to issue (9), Complainant alleged that she was subjected to discrimination when the Agency failed to provide her a reasonable accommodation by allowing her to remain working in Illinois. In February 2006, Complainant requested to remain working in Illinois and to work 20 hours per week. In March 2006, the Agency denied Complainant's request noting her duty station was in Texas and she was needed for work at her assigned location.
The record contains medical documentation showing that during the relevant time, Complainant saw her medical providers for sneezing, runny nose, headaches, ear pain, knee pain, sinus issues, insomnia, depression, and anxiety. The record contains a letter dated April 17, 2008, from Doctor 1 noting that Complainant has built a rapport with her clinical worker and stating "the continuity of that care will, prove imperative to help Complainant maintain emotional stability." Doctor 1 also opined that a "return to Dallas would be detrimental to [Complainant's] mental health and the progress that she has made here in Illinois, with her support system, may be irrevocably harmed." The record also contains a letter dated November 7, 2008, from Doctor 1 stating that due to her emotional health and stability, Complainant must remain in the Chicago area as her family support and social network, as well as treatment providers are all local. We do not address in the present case whether Complainant is a qualified individual with a disability. Although Complainant's family, friends, and the medical providers who were treating her at the time were located in Chicago, there was no indication that Complainant could not receive treatment for her medical conditions in Dallas. Upon review of the record, we find Complainant failed to present sufficient medical documentation to show that her medical condition prevented her from working in Dallas, Texas, her assigned duty location. Additionally, Complainant failed to show that she needed the reasonable accommodation of working a 20 hour work week. Thus, we find Complainant failed to show that the Agency denied her a reasonable accommodation.
CONCLUSION
Accordingly, the Agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
12/8/11
__________________
Date
1 In his decision, AJ2 noted Complainant stated that she was subjected to discrimination based on her national origin (African-American). AJ2 stated that the designation of "African-American" refers to one's racial category, and not their national origin. Thus, AJ2 summarily dismissed Complainant's claim of national origin discrimination.
2 The original rating in Complainant's performance appraisal is the subject of a separate complaint (EEOC Appeal No. 0120071095) and will not be addressed in this decision.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
01-2009-0306
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090306