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.