0120071213
07-10-2009
Janice L. Jackson, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Janice L. Jackson,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120071213
Hearing No. 420-2006-00089X
Agency No. P-2006-0010
DECISION
Complainant filed an appeal from the agency's final action dated December
7, 2006, finding no discrimination with regard to her complaint. In her
complaint, dated October 3, 2005, complainant alleged discrimination
based on race (Black), sex (female), age (over 40), and disability when:
(1) management denied her leave without pay (LWOP) request; and (2)
management provided her medical records to an identified physician
without her approval on August 11, 2005.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On October
31, 2006, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged actions. During the relevant
time period at issue, complainant was employed as a Safety Specialist,
GS-9, at the agency's Federal Correctional Complex in Yazoo City,
Mississippi. Previously, on August 12, 2004, complainant received an
on the job injury to her knee. In May and June 2005, her physical
restrictions included no prolonged climbing of stairs, not able to
restrain prisoner, no lifting over 15 pounds, no running, and no standing
for over 30 minutes intervals. Based on these restrictions, on June 24,
2005, the agency offered and complainant accepted the duties of the
modified Safety Specialist. On appeal, complainant does not dispute
the fact that the duties of this modified assignment were within her
medical restrictions.
Meanwhile, on June 20, 2005, complainant applied for a position with
another federal agency, the Department of Army. The record indicates that
on July 22, 2005, complainant submitted an application for disability
retirement with the agency (Department of Justice), but she later
rescinded when she received a new job with the Department of Army.
The record indicates that on September 12, 2005, complainant accepted a
position as a GS-11 Safety and Health Occupational Specialist with the
Department of Army, at Fort Leavenworth, Kansas, effective September
18, 2005. Complainant thus resigned her employment at the agency
(Department of Justice).
With regard to claim (1), in August 2005, complainant submitted two
requests for LWOP for the periods of August 7 - 20, 2005, and August
21 - September 3, 2005. Complainant's Warden stated that he denied
the requests because complainant was allowed to work in her modified
assignment. The Warden indicated that complainant, nevertheless, was
not charged any type of leave and was paid for August 7 - 20, 2005, and
sick leave was approved for August 21 - September 3, 2005. On appeal,
complainant merely contends with no supporting evidence that she was not
allowed to work during the relevant time period. However, the record
clearly indicates and complainant also admits that she was given the
modified assignment in accordance with her medical restrictions during
the relevant time period. In fact, the agency stated that on August
9, 2005, complainant conducted a house hunting trip to Leavenworth,
Kansas, and on August 16, 2005, she moved from Yazoo City, Mississippi,
to Leavenworth, Kansas, and never planned on returning to the agency to
work in any fashion.
With regard to claim (2), the agency indicated that an identified
physician was the Clinical Director who determined if a temporary
alternative duty could be offered to complainant in accordance with her
physical restrictions. Specifically, the physician reviewed complainant's
medical records in order to provide guidance to management at the facility
regarding necessary restrictions on her work or duties and whether the
proposed accommodation was sufficient. On appeal, complainant disputes
the qualifications of the foregoing physician, but she does not dispute
the fact that the physician was in fact in a position to review an
employee's medical records and provided guidance to management based on
that review.
The Commission agrees with the AJ that complainant failed to rebut the
agency's legitimate, nondiscriminatory reasons for the alleged actions.
In this decision, we do not decide whether complainant was a qualified
individual with a disability within the meaning of the Rehabilitation
Act. The record clearly indicates that complainant was accommodated
with a modified assignment during the relevant time period. There is
no evidence that complainant was required to perform her duties beyond
her medical restrictions. Upon review, we find that it is unclear how
complainant's requested LWOP would accommodate her performing the duties
of her position at the agency. It is noted that complainant clearly
admitted that she could not perform her duties as a Safety Specialist at
the agency's Federal Correctional Complex. Complainant has not shown, and
the record does not indicate, that there was any vacant funded position
that met her medical restrictions during the relevant time period.
Furthermore, complainant has not shown how any agency action raised in
the complaint was motivated by discrimination.
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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, 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 (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
7/10/09
__________________
Date
2
0120071213
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013