Jane R. Lockley, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Internal Revenue Service, Agency.

Equal Employment Opportunity CommissionSep 1, 2000
01973971 (E.E.O.C. Sep. 1, 2000)

01973971

09-01-2000

Jane R. Lockley, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Internal Revenue Service, Agency.


Jane R. Lockley v. Department of the Treasury

01973971

September 1, 2000

Jane R. Lockley, )

Complainant, )

) Appeal No. 01973971

v. ) Agency No. 94-2041

)

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Internal Revenue Service, )

Agency. )

)

)

DECISION

Complainant timely filed an appeal with the Commission from a final

decision of the agency concerning her complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation

Act of 1973, 29 U.S.C. � 791. Pursuant to 64 Fed. Reg. 37,644, 37,

659 (1999) (to be codified at 29 C.F.R. � 1614.405), the Commission

accepts the complainant's appeal from the agency's final decision in

the above-entitled matter.<1>

The issues before us are:

Whether the agency harassed Complainant because of her race (black), sex,

disability (permanent effects of back injury, blackouts), and reprisal

(EEO grievances filed in 1988 and 1991) when:

her supervisor allegedly submitted an inaccurate standard form 2824,

in connection with her application for disability retirement, which

caused the application to be denied by OPM on September 20, 1993;

her supervisor allegedly caused an unreasonable delay in processing a

CA-8 form in connection with an application for a continuation of workers

compensation benefits, by refusing to allow an acting supervisor to sign

off on the form on September 29, 1993; and

Whether the agency failed to reasonably accommodate Complainant's

disability so that she could continue to work.

The agency employed Complainant as a GS-12 revenue officer at its

office in Miami, Florida. She filed a complaint setting forth the above

allegations in October 1993. The agency investigated the complaint and

referred the matter for a hearing. Complainant subsequently withdrew her

hearing request and requested a final agency decision without a hearing.

In accordance with Complainant's request, the agency issued a final

agency decision finding no discrimination on any of her allegations.

It is from this decision that Complainant now appeals. In her appeal,

she contests the agency's final decision on its merits.<2>

Harassment:

Harassment of an employee that would not occur but for that employee's

race, color, sex, religion, national origin, age, or disability is

unlawful if it is sufficiently patterned or pervasive. Frye v. Department

of Labor, EEOC Request No. 05950152 (February 8, 1996). Unless the

conduct in question is very severe, however, a single incident or group

of isolated incidents will not be regarded as discriminatory harassment.

Backo v. United States Postal Service, EEOC Request No. 05960227 (June

10, 1996). In connection with the form 2824 incident, Complainant

alleged that the Office of Personnel Management (OPM) denied her

application for disability retirement on September 20, 1993, because of

inaccurate information that her supervisor included on the 2824 form.

The record reveals, however, that OPM denied the application because

Complainant had not submitted medical documentation sufficient to

establish that she met OPM's criteria for disability retirement, and

not because of any deficiencies on the 2824 form. Investigative Report

(IR) 209-11, 319. Complainant subsequently submitted the requested

documentation, and her application was approved in January 1994.

IR 229, 317. Regarding Complainant's CA-8 form, Complainant asked

her acting supervisor to fill out the form on September 29, 1993.

The acting supervisor called Complainant's regular supervisor at home

for guidance. The regular supervisor instructed him to leave the

form for him to sign when he returned. The regular supervisor did,

in fact, return the next day and sign her CA-8 form. IR 232, 264-65.

Complainant failed to present any evidence establishing how she was harmed

by the one-day delay in the signing of the CA-8 form. Neither incident,

either individually or together, constitutes harm to a term, condition,

benefit, or privilege of employment severe enough to rise to the level

of discriminatory harassment.<3>

Reprisal:

Complainant may establish a prima facie case of reprisal by showing: (1)

that she engaged in protected EEO activity; (2) that the agency was aware

of that activity; and (3) that she was subjected to an adverse action

at such a time or in such a manner as to support a causal connection

between the two events. Frye v. Department of Labor, EEOC Request

No. 05940764 (December 15, 1994); Hochstadt v. Worcester Foundation for

Experimental Biology, 425 F. Supp. 318 (D. Mass), aff'd, 545 F.2d 222

(1st Cir. 1976). The record establishes that Complainant filed an EEO

grievance against her supervisor in 1988 and against another supervisor

in 1991. We find that Complainant's reprisal allegation does not satisfy

the third prong of the prima facie case because her prior EEO activity

was too remote to support a causal connection to the incidents at issue,

and because the incidents themselves are not adverse employment actions.

Complainant even admitted that she suffered no actual loss of benefits.

IR 229. We therefore find that Complainant has not established a prima

facie case of reprisal in connection with the incidents described above.

Denial of Reasonable Accommodation:

Complainant contends that the agency failed to accommodate her disability

by modifying the duties and responsibilities of her position so that she

could continue to work as a revenue officer. The agency conceded that

Complainant had both physical and mental disabilities, but determined

that Complainant is not a qualified individual with a disability because

her physician indicated that she was fully incapacitated and unable to

work due to her medical condition.

To bring a claim of disability discrimination, petitioner must

first establish that she has a disability within the meaning of the

Rehabilitation Act. Murphy v. United Parcel Service, Inc., 527 U.S. 516

(1999); Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139,

2141-42 (1999); Albertsons, Inc., v. Kirkingburg, 527 U.S. 555 119

S.Ct. 2162, 2167-68 (1999). An individual with a disability is one who

has, has a record of, or is regarded as having a physical impairment

that substantially limits one or more of her major life activities. 29

C.F.R. � 1630.2(g).<4> Major life activities include functions such as

caring for one's self, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i).

Complainant experienced a work-related injury in 1987 and aggravated

that injury in 1989. Her condition, characterized by chronic pain

and fainting spells, gradually deteriorated. By October, 1992, she

had stopped working entirely, and, although still nominally employed,

was on leave without pay status. IR 226, 328, 413-14. In a memorandum

dated January 13, 1993, one of Complainant's treating physicians,

a chiropractor, indicated that she was fully incapacitated and could

no longer work, and that it was impossible to determine whether she

would recover. IR 392-93. On March 24, 1993, Complainant submitted an

application for disability retirement, which was approved in January 1994.

IR 227, 317, 327. We find this information sufficient to establish that

the degenerative effects of Complainant's injury constitute a physical

impairment that substantially limits several major life activities,

including her ability to work. Complainant therefore has a disability

within the meaning of the Rehabilitation Act.

In addition to establishing that she has a disability, complainant must

also show that she is qualified. See Cleveland v. Policy Management

Systems Corp.526 U.S. 795, (1999). A qualified individual with a

disability is one who can, with or without reasonable accommodation,

perform the essential functions of the position in question. 29 C.F.R. �

1630.2(m). In her application for disability retirement, Complainant

described the essential functions of the revenue officer position as

conducting investigations and working with individual and corporate

taxpayers to address delinquencies. She stated that, since September

25, 1992, she had been unable to perform any of these duties without

some sort of accommodation. IR 327-35. The agency provided her with

several accommodations until her retirement.

Under the Commission's regulations, an agency is required to make

reasonable accommodation to the known physical and mental limitations

of a qualified individual with a disability unless the agency can show

that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9(a);

Enforcement Guidance on Reasonable Accommodation and Undue Hardship

Under the Americans with Disabilities Act, EEOC Notice No. 915.002, 2-7

(March 1, 1999). Reasonable accommodation may include job restructuring

or modified work schedules. 29 C.F.R. � 1630.2(o). Factors to consider

in determining whether any of these accommodations would impose an

undue hardship include the size and budget of the program, the type of

operation and the nature and cost of the accommodation. 29 C.F.R. �

1630.2(p). In application forms, dated March 24 and April 19, 1993,

Complainant indicated that the agency attempted to accommodate her for

several years before she applied for disability retirement by giving her

a special lumbar support chair, by allowing her to assist with field

calls, and by gradually reducing her case load to zero. IR 327, 399.

None of these measures proved to be effective.

The agency must consider reassignment to a vacant position if other

attempts at reasonably accommodating Complainant fail. 42 U.S.C. �

12111(9)(B); 29 C.F.R. � 1630.2(o)(2)(ii); Enforcement Guidance on

Reasonable Accommodation and Undue Hardship Under the Americans with

Disabilities Act, pp. 37-45; Bassingthwaithe v. Department of the Army,

EEOC Petition No. 03970051 (October 2, 1997); Ignacio v. United States

Postal Service, EEOC Petition No. 03840005 (September 4, 1984), aff'd

Special Panel No. 1 (February 27, 1986). In its final decision, the

agency stated that Complainant's disability precluded her from being

qualified for any position. In a letter to the agency dated January

13, 1993, Complainant's chiropractor stated that Complainant is unable

to perform normal activity as a result of back pain and uncontrollable

fainting spells. The chiropractor also stated that it was likely that her

condition would remain, that Complainant was fully incapacitated, and that

her blacking-out spells presented a danger to those around her. IR 393.

On the basis of this letter, the agency indicated on Complainant's

disability retirement form that no reassignment could be made. IR 399.

The record clearly and unequivocally establishes that Complainant could

no longer perform the essential functions of her position as a revenue

officer after September 25, 1992, notwithstanding the agency's efforts

to provide her with a reasonable accommodation. We therefore find that

the agency correctly concluded that, although Complainant is disabled

within the meaning of the Rehabilitation Act, she is not a qualified

individual with a disability.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

__09-01-00________________ ______________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Complainant also contends on appeal that the issue of continuing

violation was not addressed during the investigation by the agency.

Complainant never raised the issue, however, and it appears from the

record that the agency investigated the allegations that Complainant

identified in her complaint. Moreover, we note that Complainant does not

identify any allegations that occurred more than 45 days beyond the time

limit for contacting an EEO counselor that would support the existence

of a continuing violation, and that Complainant withdrew her request for

a hearing. We therefore find that her appeal contention regarding the

agency's failure to address a continuing violation claim has no merit.

3Moreover, it appears that Complainant is using the EEO administrative

process to collaterally attack the decisions of OPM and OWCP. Such

collateral attacks are not permitted. Lau v. National Credit Union

Administration, EEOC Request No. 05950037 (March 18, 1996).

4The 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. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.