01975369
04-21-2000
Lesa Y. Hall, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service) Agency.
Lesa Y. Hall v. Department of the Treasury
01975369
April 21, 2000
Lesa Y. Hall, )
Complainant, )
) Appeal No. 01975369
v. ) Agency No. 93-2219;93-2265
) Hearing No. 250-96-8209X;
) 250-96-8210X
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service) )
Agency. )
)
DECISION
Complainant, Lesa Y. Hall, filed a timely appeal from the agency's final
decision concerning her equal employment opportunity (EEO) complaint.
She alleged unlawful employment discrimination on the bases of reprisal
(prior EEO activity) and physical disability (fibromyalgia), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.; and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791, et seq.<1> Complainant alleges she was discriminated against when:
(1) she received a negative evaluation with unacceptable ratings; (2)
she was counseled for inappropriate behavior on February 5, 1993; 3)
her supervisor interfered with her appointment with the EEO counselor;
and 4) she was placed on absent without leave (AWOL) in March 1993. The
appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission AFFIRMS the agency's final decision.
The record reveals that the complainant, a Revenue Officer GS-1169-11, at
the agency's Collection Division, Nashville District Office, Nashville,
Tennessee office, filed a formal EEO complaint with the agency on April
15, 1993 and on May 29, 1993, alleging that the agency had discriminated
against her as referenced above.
At the conclusion of the investigation, complainant received a copy of
the investigative report(s) and requested a hearing before an EEOC
administrative judge (AJ). Following a hearing, the AJ issued a
recommended decision finding no discrimination.
The AJ concluded that the complainant established she was a qualified
disabled employee because of her condition known as fibromyalgia.<2>
The AJ found the condition caused the complainant sleep deprivation,
severe memory problems, word confusion and fatigue. She further concluded
that the complainant was able to perform the essential functions of her
job with or without accommodation and therefore, she was a qualified
disabled person. Even so, the AJ decided the complainant failed to
establish that her disability was a factor in her poor evaluation, the
agency's decision to place her on AWOL, or its decision to counsel her
for her behavior. As to the complainant's claim of reprisal, the AJ
found she established a prima facie case, but she failed to show that
the agency was motivated by reprisal in taking the actions that it did.
The AJ found the agency had articulated legitimate non-discriminatory
reasons for its actions and that the complainant failed to show the
agency's reasons were a pretext for discrimination. The AJ credited
the agency's evidence that it counseled the complainant and issued her a
written memorandum because it was concerned about workplace safety. The AJ
further credited the agency's contention that it placed the complainant
on AWOL because she failed to provide adequate medical documentation
of her need for advanced sick leave. On both of these issues, the AJ
concluded the complainant failed to show that the agency's actions were
motivated by her disability or reprisal. Lastly, the AJ found that the
complainant's supervisor's (S1) contact with the EEO office to change
the time of her appointment did not constitute an adverse action, and
therefore, as to this issue, the complainant had not proven reprisal.
On appeal, complainant contends that the AJ erred in finding no
disparate treatment based on her disability because a similarly
situated employee who had also failed to satisfy critical elements of
his performance appraisal was rated higher. She contends that S1 had
the same complaints about the comparative employee but gave him a more
favorable rating. Finally, the complainant contended she was unfairly
counseled about the statements she made because 3 of 4 employees who
heard them were not concerned about them.
ANALYSIS AND FINDINGS
1.Standard of Review
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
administrative judge 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).
2.Reasonable Accommodation
The Commission previously considered a similar appeal filed by the
complainant also alleging disability discrimination in being denied
a within grade increase.(Hall v. Department of the Treasury, EEOC
No. 03940163, February 5, 1995) In that case, we found the complainant was
disabled within the meaning of the law but that she failed to identify an
accommodation which would enable her to perform the essential functions
of her job. The complainant had alleged that she needed the agency
to adjust her duties and reassign some of her cases to accommodate
her inability to process her cases in a timely manner. We concluded
that such an accommodation would not have been effective because the
complainant's processing times were delayed for months at a time.
In this case, we will assume for the purpose of our analysis herein
that the complainant's fibromyalgia rises to the level of a disability
under the Rehabilitation Act. Unlike the AJ, however, we conclude
that the complainant was not able to perform the essential functions
of her job with or without an accommodation. The record contains the
complainant's physician's report of May 14, 1993 which concludes that
"there is no indication that [complainant] would ever be able to work
at the IRS again due to the stress of the job itself and that put on
her by management which causes the symptoms of Fibromyalgia to flare."
The doctor goes on to say, "her fatigue level is to the point that
she can only be active three to four hours a day ... this interferes
with any outside work activity. The Fibromyalgia presently prevents
[complainant] from doing any activities outside the home." The doctor
recommends that "[complainant] not stay in her current position at
the IRS." These opinions were given even after the complainant had
been on leave for several weeks.
Although the complainant contends she should have been granted a
reassignment to a different team to accommodate her disability, we are
not persuaded that such an accommodation would have been effective
or appropriate. Normally, reassignment is an accommodation of last
resort. EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, No. 915.002, March 1,
1999, p.37.
Here, the complainant's physician states her condition is aggravated by
the stress on her current job, but it is apparent from the medical records
that the complainant's condition is debilitating even absent stress.
Even if the complainant were assigned to another team, the very nature
of her job and the requirements of timeliness, attendance to deadlines,
and meeting statutes of limitations were stressful.<3>
We further conclude that there was little evidence the complainant was
able to return to work from extended leave in any type of position. The
record is silent regarding the restrictions under which the complainant
could have worked aside from generalized reductions in stress. Therefore,
we conclude that without more definitive information regarding
the complainant's restrictions, reassignment was not a meaningful
accommodation.
3.Disparate Treatment and Reprisal
Even if the complainant cannot be accommodated, an employer must
also comply with the prohibitions against harassment on the basis of
disability. The AJ found that there was no harassment of the complainant
on the basis of her disability or reprisal and we see nothing in the
record which calls the AJ's findings into question.
The complainant contends she was treated differently in her performance
evaluation, in being counseled for inappropriate behavior and in being
placed on AWOL because of her disability and reprisal. We already
found in our previous decision that the agency's evaluation of the
complainant's performance was not discriminatory but was more likely
based on her inadequate performance. In addition, the AJ concluded
that the complainant's poor performance evaluation in this case was not
motivated by her disability or reprisal. We note that another employee
outside of the complainant's protected groups had performed poorly and
was given an evaluation reflecting ratings similar to the complainant's.
We considered the more favorable rating of the employee about whom the
complainant complains and concluded that he received poor ratings on one
assignment but had generally better ratings on all his other projects.
For these reasons, the complainant failed to show by a preponderance
of the evidence that her poor evaluation was based on her disability
or reprisal.
We also see no reason to overturn the AJ's determination that the agency
had legitimate non-discriminatory reasons for counseling the complainant
orally and in writing, about statements she had made. The complainant's
statements, which she admits making, concerned her dreams of shooting
S1 and envisioning S1's head rolling down the aisle. Even though the
complainant contends her statements were innocuous, and were brought on
by medication, we agree that the agency was justified in taking actions
to ensure workplace safety.
On the issue of the complainant's AWOL status, we find no reason
to overturn the AJ's conclusion that the agency's actions were not
discriminatory or based on reprisal. Although the agency was well
aware of the complainant's condition at the time it requested medical
documentation, the complainant was not entirely forthcoming and
communicative with S1 about her status on this particular occasion.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
recommended decision accurately stated the relevant facts and correctly
applied the appropriate regulations, policies, and laws. Therefore,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision.
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:
4/21/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
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.
2The 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.
3There was some evidence that the complainant had a personality conflict
with S1 and had requested reassignment because of disagreements between
the two. Our Guidance does not required an employer to change supervisors
as a reasonable accommodation. Id. 46