Ginger Gist, Complainant,v.Charles E. Johnson, Acting Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionJan 29, 2009
0120073255 (E.E.O.C. Jan. 29, 2009)

0120073255

01-29-2009

Ginger Gist, Complainant, v. Charles E. Johnson, Acting Secretary, Department of Health and Human Services, Agency.


Ginger Gist,

Complainant,

v.

Charles E. Johnson,

Acting Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 0120073255

Agency No. CDCNCEH03705

Hearing No. 410200600249X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's June 11, 2007, 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.1

In her formal complaint, complainant, a supervisory health scientist

at the Centers for Disease Control and Prevention, alleged that the

agency discriminated against her on the bases of disability (Crohn's

disease, auto accident, stress) and in reprisal for prior protected EEO

activity when (a) she was harassed from March 17 to November 22, 2005;

and (b) she was denied a reasonable accommodation in 2005.2 Following

an investigation, complainant requested a hearing before an EEOC

Administrative Judge (AJ). On March 28, 2007, the AJ heard testimony

from complainant, followed by the agency's Motion for summary judgment

(directed verdict), and complainant's objection. On May 3, 2007, the AJ

issued a decision, finding that the agency did not discriminate against

complainant.

The AJ found that complainant never provided the requested medical

documentation to support her request for reasonable accommodation, nor

did she give the agency or her medical providers signed medical releases

to release her information. Complainant stated that she was harassed by

managers when they interacted with her and sought completed work products

and medical records from her. The AJ found that the agency's actions were

reasonable in light of the circumstance and that the agency's actions did

not constitute harassment/hostile work environment. The AJ also found

that the agency did accommodate complainant by granting her request for

a detail and allowing her to take leave and that after her March 2005,

request, her failure to provide the supporting medical information

rendered the agency's obligation null.3 Finally, as to her claim based

on reprisal, the AJ found that complainant did not establish a nexus or

causal connection between her EEO contact in May 2005, and the agency's

actions thereafter, since the genesis of the situation extended several

years back.

After a review of the record in its entirety and consideration of

all statements submitted on appeal, including those not specifically

addressed, it is the decision of the Equal Employment Opportunity

Commission to affirm the agency's final decision, because the AJ's

determination, that unlawful employment discrimination was not proven

by a preponderance of the evidence, is supported by the record.4

CONCLUSION

Accordingly, the agency's decision is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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, D.C. 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

__01/29/2009________________

Date

1 Complainant withdrew her claim based on age under the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

2 Complainant was a Supervisory Health Scientist, GS-15. In November

2003, she requested and was granted a detail to a non-supervisory position

to write four scientific papers of publishable quality. In March 2005,

she had not presented any work of merit, and the agency directed her to

resume her former position or accept a non-supervisory position with a

decrease in grade. At that time, she sought a reasonable accommodation

and the agency sought medical information, but she refused to provide it.

She returned to work in May and worked until July 18, 2005, when she

ceased work, acknowledging that she was totally incapacitated for work.

She was terminated in July 2006, for excessive absence. See fn. 3,

infra.

3 The AJ questioned whether complainant was entitled to the protection

of the Rehabilitation Act after she stopped working in July 2005, since

she stated that she was "totally incapacitated" and could not perform

any of the duties of her position. AJ, p. 13.

4 Complainant's termination from the agency in July 2006, was sustained by

the Merit Systems Protection Board (MSPB) based on complainant's failure

to provide acceptable medical information, being absent without leave

(AWOL) from November 2005, through March 2006, and past disciplinary

actions.

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0120073255

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

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0120073255