0120071044
05-15-2009
Leticia Renteria, Complainant, v. William B. Donley, Secretary, Department of the Air Force, Agency.
Leticia Renteria,
Complainant,
v.
William B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120071044
Hearing No. 451-2006-00068X
Agency No. 4A1M05006F07
DECISION
On December 14, 2006, complainant filed an appeal from the agency's
November 16, 2006 final order concerning her equal employment opportunity
(EEO) complaint. Complainant alleged employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission accepts the appeal, pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Medical Technician at the agency's Drug Testing Division, Specimen
Control facility, located in Brooks City Base, Texas. Complainant's
duties required her to conduct drug tests on military members' urine
specimens through a complicated analytical process. The work performed
by complainant was used as evidence in court-martial proceedings.
The agency's medical technicians worked in shifts. The technicians
worked a rotating schedule which required each of them to work the third
shift periodically. Complainant sometimes worked the third shift, from
around noon until 9:00 p.m. Complainant requested that she be relieved
permanently from working the third shift.
The record reflects that complainant has had a hearing impairment since
birth. In recent years, her eyesight has declined. The record shows that
complainant was diagnosed as having retinitis pigmentosa. This condition
diminished complainant's peripheral and night vision. Rather than excuse
complainant from the third shift, the agency consolidated complainant's
third-shift assignments to the summer months, when days are longest,
and changed complainant's duty hours on that shift from 12:15 p.m. to 9
p.m., to 11:00 a.m. to 7:45 p.m., so that complainant would be driving
in daylight. The agency further granted complainant liberal leave on
occasions when she might feel the weather would impact her ability to
drive. The agency also modified the start and end times of complainant's
preferred day shift throughout the year to give her the benefit of longer
daylight hours.
In February 2005, complainant contacted the union to seek assistance
regarding a request for reasonable accommodation. On or about March 8,
2005, complainant gave her supervisor a medical slip that stated that
it was "not a good idea" for her to drive at night. In a conversation
that occurred on or about around March 9, 2005, complainant advised her
supervisor that she could not do her job due to her poor eyesight. The
supervisor, who is the alleged responsible management official, documented
the conversation and asked complainant to sign a statement confirming
the conversation in which complainant stated her inability to do her
job. Complainant complied with the request.
On or about March 11, 2005, the agency temporarily removed complainant
from her technician duties and required a medical clearance before the
agency would allow her to resume her duties. Until complainant provided
a medical clearance, the agency gave complainant administrative duties
to perform.
On June 3, 2005, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of disability (hearing and vision
impairments) and in reprisal for prior protected EEO activity when the
agency did not grant her request to be excused from the third shift and
stopped her from performing her technician duties.
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, which was held on October 12, 2006.
On October 20, 2006, the AJ issued a decision finding no
discrimination. The AJ found that complainant was an individual with a
disability. Further, the AJ found that the agency provided complainant
with a reasonable accommodation when the agency modified her shift
times and consolidated her third-shift assignments to occur during
the summer months. The AJ stated that the law did not require that
the agency grant complainant's preferred accommodation (to be excused
from the requirement to work the third shift altogether). With regard
to the reprisal claims, the AJ found that complainant's evidence was
insufficient to prove that the agency's explanation for its actions was
a pretext for retaliation against complainant. The AJ found, based on
testimony at the hearing from complainant's supervisor, that the agency
was concerned about complainant's ability to do her job as the agency
required. The AJ referenced the evidence that the agency's concern
was prompted by complainant's statement that she could not do her job.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in finding no
discrimination, asserting that working the third shift was not an
essential function of complainant's job. Complainant asserts that the
agency failed to provide a reasonable accommodation because her requested
accommodation was not an undue burden.1
The agency contends, inter alia, that the AJ's decision should be
affirmed because the AJ's factual findings and legal conclusions are
fully supported by the record.
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).
In this case, the substantial evidence of record supports the AJ's
findings that complainant is an individual with a disability and that
the agency provided her with reasonable accommodation. The AJ properly
noted that complainant is entitled to an effective accommodation, rather
than an accommodation of choice.
With regard to the allegation of reprisal, the record supports the AJ's
finding that the agency's concern regarding complainant's performance
was prompted by complainant's statement that she could not do her job.
The AJ's findings are supported by substantial evidence of record, and
are bolstered by credibility determinations. Accordingly, we find no
basis to disturb the AJ's decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, it is the decision
of the Commission to AFFIRM the agency's final order.
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 tends 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
May 15, 2009
Date
1 Complainant does not challenge the AJ's decision not to permit her to
amend the complaint to add other issues, including a hostile environment
claim. We consider the failure to brief this issue on appeal as a waiver
of these claims.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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