01983034
08-29-2002
Gloria J. Lilly, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Gloria J. Lilly v. Department of Labor
01983034
August 29, 2002
.
Gloria J. Lilly,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01983034
Agency No. 4-02-147
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 accepted
pursuant to 29 C.F.R. � 1614.405. Complainant alleged that she was
discriminated against on the bases of disability (Attention Deficit
Hyperactivity Disorder and Tourette's Syndrome) and reprisal (not
specified) when: (1) on June 3, 1994, she perceived that she was being
ridiculed at a staff meeting; (2) the agency failed to make a reasonable
accommodation by having her Integrated Management Information System
(IMIS) training conducted in the Lab; and (3) on March 24, 1994, the
Area Director responded to her request for a reasonable accommodation
dated February 28, 1994.
The record reveals that during the relevant time, complainant was employed
as a Physical Science Technician at the agency's Occupational Safety and
Health Administration, Albany Area Office. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on July 25, 1994. 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.
In its FAD, the agency concluded that complainant failed to show that
she was discriminated based on her disability as related to claim (1).
As to claim (2), the agency did not determine whether complainant
was an individual with a disability under the Rehabilitation Act.
Instead, the agency found that it complied with complainant's request
for a reasonable accommodation. The agency noted that complainant's
physician recommended that she be placed in a work environment where
she had only one supervisor and where the job related demands would be
highly structured. Based upon complainant's request, the Area Director
averred that the agency took two actions. First, the Area Director
placed complainant under the full-time supervision of one person, the
Supervisory Secretary. The second action that the agency took was to
have the Supervisory Secretary restructure complainant's work so that
she was given one task at a time rather than multiple tasks that might
confuse her. Accordingly, the agency concluded that the agency took the
necessary steps to accommodate complainant in order for her to perform
the essential functions of her position. Therefore, the agency issued
its decision finding no discrimination.
Complainant filed the present appeal without comment. The agency requests
that we affirm its FAD.
Disparate Treatment
In claim (1), complainant alleged that she was ridiculed at a staff
meeting based on her disability. In analyzing a disparate treatment
claim under the Rehabilitation Act, where the agency denies that its
decisions were motivated by complainant's disability and there is no
direct evidence of discrimination, we apply the burden-shifting method
of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica
Cmty Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA,
179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order
to establish a prima facie case, complainant must demonstrate that: (1)
she is an "individual with a disability"; (2) she is "qualified" for the
position held or desired; (3) she was subjected to an adverse employment
action; and (4) the circumstances surrounding the adverse action give
rise to an inference of discrimination. Lawson v. CSX Transp., Inc.,
No. 00-1179, 2001 WL 292999 (7th Cir. March 26, 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy her burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Upon review of the record, the Commission finds that complainant
failed to establish a prima facie case of disability discrimination.
Assuming without finding that complainant was a qualified individual
with a disability, we conclude that complainant has not shown that she
was subjected to an adverse employment action. The record indicates
that at a staff meeting on June 3, 1994, issues were raised concerning
paging of people within the office for phone calls when people were out on
annual leave, in training, or otherwise not in the office for the day.
As the discussion continued and other staff members agreed with the
concerns raised, the Area Director indicated that the discussion was not
focused on any particular person. Complainant then stood up and made a
statement to the staff that she sometimes makes mistakes. The Commission
finds that complainant has not show that there was an adverse action.
Furthermore, if complainant had shown there was an adverse action taken
by the agency, she failed to show that the circumstances surrounding the
adverse action gave rise to an inference of discrimination. Accordingly,
the Commission finds that complainant failed to establish that the agency
discriminated against her as alleged in claim (1).
Reasonable Accommodation
In claims (2) and (3), complainant alleged that the agency failed
to provide her with a reasonable accommodation. Pursuant to the
Rehabilitation Act, an agency is required to make reasonable
accommodations for the known physical or mental limitations of an
otherwise qualified applicant or employee with a disability, unless the
agency can demonstrate that the reasonable accommodation would impose
an undue hardship on the operation of its business.
Assuming without finding that complainant was a qualified individual with
a disability, the Commission finds that the agency met its obligation
under the Rehabilitation Act to provide complainant a reasonable
accommodation. Complainant requested on February 28, 1994, that she be
allowed to work at her desk and have the Regional Industrial Hygienist act
as her only supervisor. In support of her request, complainant provided
a note from her Psychologist dated February 25, 1994. In his note, the
Psychologist recommended that complainant �be placed in a work environment
in which she has one and only one supervisor.� Report of Investigation
(ROI), Tab A, p. 11. In addition, the Psychologist indicated that the
�job related damands on her will need to be such that they are highly
structured or she is capable of structuring her job demands.� Id. It is
undisputed that the agency placed complainant under the supervision of
one person and restructured her work pursuant to the recommendation of
complainant's physician. The Commission finds that the actions taken
by the agency were an effective accommodation. At issue in this case is
complainant's dissatisfaction with clerical duties and with the decision
to place her under the Supervisory Secretary. It is the Commission's
position that if more than one accommodation is effective, "the preference
of the individual with a disability should be given primary consideration;
however, the employer providing the accommodation has the ultimate
discretion to choose between effective accommodations." 29 C.F.R. �
1630.9; See also EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, No. 915.002,
Question 9 (March 1, 1999); Polen v. Department of Defense, EEOC Appeal
No. 01970984 (January 16, 2001). Thus, while complainant maybe entitled
to an effective reasonable accommodation under the Rehabilitation Act,
she is not entitled to the accommodation of her choice. Accordingly, we
find that the agency provided complainant with a reasonable accommodation
even though it was not the exact accommodation she had requested.
Therefore, after a careful review of the record, 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
August 29, 2002
__________________
Date