0120071249
10-09-2009
Judith Penney, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Judith Penney,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120071249
Hearing No. 370-2005-00256X
Agency No. HS 00-CBP-000342
DECISION
On January 30, 2007, complainant filed an appeal from the agency's
November 30, 2006 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a GS-1890-09 Customs Inspector with the agency's Passenger Analysis
Unit (PAU), in San Francisco, California. Complainant began working as
a Customs Inspector with the agency as a GS-5 in 1990. In July 1992,
complainant was diagnosed with severe depression. In 1995, complainant
was referred to a psychiatrist for treatment following an adverse reaction
to medication she was taking to treat her depression. From March 1995
to September 1999, complainant suffered occasional episodic depressive
symptoms, which caused her doctors to adjust her medication. Complainant
also suffered from migraine headaches since 1969 and irritable bowel
syndrome (IBS) since 1975. Complainant's medical conditions caused
her to miss work frequently during this period. In September 1999,
complainant applied to become a recipient in the agency's voluntary
leave transfer program. Complainant's application was approved and she
subsequently received leave donations through the program.
On January 14, 2000, complainant was physically assaulted by a passenger
while performing her inspection duties. Complainant was traumatized
by the assault and her depressive symptoms worsened. Following the
assault, complainant was diagnosed with Post Traumatic Stress Disorder
(PTSD) in addition to her preexisting diagnosis of Major Depressive
Disorder Recurrent. Following the assault, complainant also experienced
an increase in migraine headaches and IBS. As a result, complainant
missed work even more frequently than prior to the assault.
On March 22, 2000, the agency issued a vacancy announcement for several
GS-1890-11 Senior Customs Inspector positions in various duty locations.
Complainant applied for one of the advertised vacancies. An automated
system, developed by the Office of Personnel Management (OPM), rated
and ranked the applicants for the position based upon their responses
to a work activity questionnaire. A Certificate of Eligibles was issued
on June 23, 2000, for San Francisco, California. There were 27 eligible
candidates, including complainant, plus two alternate staffing candidates.
Complainant received a score of 342 and was rated second highest among
the 27 eligible candidates. The agency did not make a selection from
this list until August 2000.
In the meantime, complainant continued to miss work more frequently due
to her depression and related conditions. In fact, complainant missed
most of her scheduled work days. In July 2000, complainant filed a
claim for worker's compensation for "Severe Depression." Her claim was
accepted by the Department of Labor.
On August 14, 2000, eight candidates were selected to fill the GS-1890-11
Senior Customs Inspector vacancies. The selecting official was the Port
Director and the recommending official for the selections was an Assistant
Port Director, who was also complainant's third-level supervisor.
The Port Director instructed the recommending official to confer with
his subordinate managers on the applicants and then to report back to her
with his recommendations for promotion. As instructed, the recommending
official conferred with Chief Inspector 1 and Chief Inspector 2.
Although complainant received one of the highest qualifying scores,
neither Chief Inspector 1 nor Chief Inspector 2 recommended complainant
for the GS-11 Senior Customs Inspector vacancy. After conferring with
the recommending official, the Port Director made her selections for
the eight GS-11 vacancies. Complainant was not selected.
Thereafter, complainant's absences continued and she rarely reported
to work. On December 19, 2000, another Certificate of Eligibles was
established in order to fill several more GS-11 Senior Customs Inspector
vacancies. Complainant was included on the list of eligibles. Again,
the Port Director was the selecting official and the same Assistant Port
Director was the recommending official. The selecting official asked
the recommending official to confer with his subordinate managers on the
candidates and receive their feedback on the applicants. After receiving
the Assistant Port Director's recommendations, the Port Director selected
six applicants for the GS-11 Senior Inspector vacancies on December
21, 2000. Although she received a higher qualifying score than the six
selectees, complainant was not selected.
Complainant's depression did not improve and her excessive absenteeism
continued. Complainant stopped coming to work completely. Her last
day on the job was August 4, 2001. Complainant applied for and was
ultimately approved for disability retirement.
Complainant filed an EEO complaint dated September 20, 2000, alleging
that she was discriminated against on the basis of disability (migraine
headaches and depression) when:
1. On August 14, 2000, complainant was not selected for a position as
Senior Inspector, GS-1890-11.
2. On December 21, 2000, complainant was not selected for a position as
Senior Inspector, GS-1890-11.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the case was assigned to an AJ. On September 18,
2002, the AJ issued a Decision Without a Hearing, after finding there
were no issues of credibility and no material facts in dispute. The AJ
found complainant did not prove that she was subjected to discrimination
based on her disability. The agency fully implemented the AJ's decision.
Following her receipt of the agency's final order, complainant filed an
appeal to the Commission. In EEOC Appeal No. 01A31212 (September 28,
2004), the Commission found the AJ erred in concluding there was no
genuine issues of material fact. Rather, the Commission found there
were credibility determinations to be made at hearing. The case was
remanded for a hearing.
Thereafter, the case was sent to the EEOC San Francisco District Office
and assigned to another AJ. The AJ held a hearing on September 1 - 2,
2005 and issued a decision on November 6, 2006. The AJ found complainant
was disabled. Specifically, the AJ found that complainant's impairments
substantially limit her ability to perform the major life activities of
thinking and concentrating.1 The AJ also found complainant was qualified
for the GS-11 Senior Customs Inspector position.
However, the AJ found that complainant failed to show that the
relevant management officials were aware that complainant's impairments
substantially limited any of her major life activities. The AJ found that
neither the selecting nor recommending official knew that complainant was
a member of the protected class at the time of the selections. Further,
the AJ noted that Chief 1 and Chief 2 were not aware that complainant had
a disability at the time they gave their feedback on the candidates.
Assuming arguendo that complainant established a prima facie case
of intentional discrimination, the AJ found the agency articulated
nondiscriminatory reasons for not selecting complainant for promotion.
The selecting official testified that she relied on the advice of the
recommending official, after he consulted with his subordinate managers.
The recommending official met with Chief 1 and Chief 2 and neither
chief recommended complainant for a Senior Customs Inspector position.
The recommending official concurred with the recommendation of Chief 1
and Chief 2 and complainant was not recommended for promotion in August
or December 2000.
The AJ noted that the relevant management officials involved with the
selection decisions at issue felt complainant was not suitable for
promotion, in part, because of her attendance record. The AJ noted
that the selecting official, the recommending official, Chief 1, and
Chief 2 all agreed that complainant was not reliable with regard to her
attendance and that a more dependable attendance record was crucial
for a GS-11 Senior Customs Inspector. The AJ noted that the agency
officials all stated that complainant's failure to report to work the
majority of days in 2000 caused a significant hardship for her female
co-workers which damaged morale and caused logistical problems.
The AJ recognized that the agency also articulated several other
nondiscriminatory reasons for not selecting complainant, including that
she failed to go the extra step; she only liked to work alone; she was
unable to work with people; she did not demonstrate good teamwork skills;
and she failed to rotate for other assignments outside of the PAU.
The AJ found there was a legitimate basis for the agency's perception
that complainant may have had problems with teamwork skills.
Specifically, the AJ noted that when Supervisor X approached complainant
about the hardship that her frequent absences were having among coworkers,
especially female coworkers who were forced to take unreasonably long
shifts, complainant's response "reflected a flippant and self-centered
attitude towards her coworkers." The AJ also noted that in a series of
electronic mail messages and written letters, complainant "communicated
an indignant tone" at being confronted about the hardship her absences
were causing. Further, the AJ cited an incident in 1995 when complainant
"broke down completely" after discovering someone had moved her computer.
Complainant testified that even at the time of the hearing, she still
gets upset just thinking about the incident. The AJ also noted that
complainant acknowledged that if her preferred computer work station
was occupied by another employee, she would wait for that station to
be vacated instead of using an alternative work station. Thus, the AJ
found that the agency did not select complainant for a Senior Customs
Inspector position, in part, because of her attendance record and because
of a reasonable belief that she lacked some crucial teamwork skills that
she would need to effectively perform the functions of the supervisory
position.
The AJ further noted that the agency may not use an employment test
or other selection criterion that screens out, or tends to screen out,
qualified individuals with a disability unless the agency demonstrates
that the test score or other selection criteria is job-related for the
position in question and consistent with business necessity. The AJ
found that reasonable attendance is clearly job-related to the Senior
Customs Inspector position and "consistent with business necessity."
On appeal, complainant claims that the selecting official and the
recommending official both had knowledge that her impairments
substantially limited her major life activities of thinking,
concentrating, seeing, generally functioning, sleeping and getting out
of bed. Complainant also argues that the AJ improperly found that her
absences may be used as a selection criteria for the promotions at issue.
Complainant states that her absences were caused by her disabilities and
argues the AJ improperly relied on her attendance as an accurate measure
of her ability to perform the essential functions of the positions
at issue. Complainant notes that at the time of the non-selections
at issue, her absences were not expected to continue indefinitely.
Complainant contends that the AJ improperly found that her attendance
was job-related and consistent with business necessity. She argues
that based on a "motivating factor" standard, her disability-related
absences were a motivating factor in not selecting her for promotion.
She claims the agency failed to prove it would not have selected her,
even absent is consideration of her absences.
In response to complainant's appeal, the agency argues that the AJ's
factual finding that management officials did not know complainant's
condition substantially limited any of her major life activities
was supported by substantial evidence. The agency also states that
reasonable attendance as a selection criteria for the GS-1890-11 Senior
Customs Inspector Position is job-related for the position and consistent
with business necessity. The agency states that complainant's recent
poor attendance was recent and relevant to the issue of her ability to
perform the positions at issue.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's alleged
disability.2 Moreover, in the present case we find complainant's recent
attendance record is job-related and consistent with business necessity.
We discern no basis to disturb the AJ's decision.
Accordingly, the agency's final order 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
October 9, 2009
__________________
Date
1 While the AJ listed only depression and not migraine headaches as the
claimed disability from which complainant suffers under the statement
of issues, we note that the AJ addressed both depression and migraine
headaches in the text of her decision. We also note the agency final
order correctly noted that the issue was whether complainant was
discriminated against based on her depression and migraine headaches.
2 We do not address in this decision whether complainant is a qualified
individual with a disability.
??
??
??
??
2
0120071249
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120071249