0120083807
03-04-2010
Linda J. Johnson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Linda J. Johnson,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120083807
Hearing No. 570200700688X
Agency No. HS06TSA005504
DECISION
On September 5, 2008, complainant filed an appeal 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. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the decision which became the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as a Program Analyst in the agency's Information Technology Division (ITD) of Operational Effectiveness in Arlington, Virginia. Complainant came to ITD as a result of a reorganization in the division where she had worked since December 2004. Her duties included moving and installing IT equipment. The physical demands of the job were substantial. She was supposed to start work on December 5, but took leave to attend a funeral. She reported to work on December 6, took leave on December 7 and 8, took her alternate work schedule off-day on December 9, and returned to work on Monday, December 12. Complainant seriously injured her back while at work conducting an inventory of printers on Tuesday, December 13, 2005. She never reported back to work.
In January 2006, the agency offered her a limited duty position in an effort to return her to work. On the advice of her surgeon, complainant declined the position citing extreme pain and pending surgery. She had surgery in February 2006. In June 2006, she told her supervisor she had no prognosis and no idea when she would be able to return to work. In July 2006, her supervisor requested that she meet with him to discuss time card related paperwork and her prognosis for returning to work. On July 19, 2006, complainant left a voicemail message for her supervisor stating, without explanation, that she could not arrange to meet with him. The agency terminated her employment, effective September 22, 2006, because of her "unavailability for work" during the second year of a two-year probationary period.
On November 28, 2006, complainant filed an EEO complaint alleging that she was discriminated against on the basis of disability when the agency terminated her employment. 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. Over the complainant's objections, the AJ assigned to the case granted the agency's September 28, 2007 motion for a decision without a hearing and issued a decision without a hearing on June 4, 2008.
In his decision, the AJ found that there were no genuine issues of material fact in dispute and that complainant could not, as a matter of law, establish disability discrimination because she failed to prove she was a "qualified individual with a disability" within the meaning of the Rehabilitation Act. In reaching this conclusion, the AJ found that she could not perform the essential functions of her Program Analyst position, with or without reasonable accommodation, and that she did not request reasonable accommodation until after she had been terminated. When the agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that complainant failed to prove that she was subjected to discrimination as alleged became the agency's final action pursuant to 29 C.F.R. � 1614.109(i).
CONTENTIONS ON APPEAL
In a two paragraph brief, complainant's counsel argues that complainant could have performed the limited duty assignment post surgery had the agency re-offered it to her, and that "disability discrimination was present in this case because the agency terminated the Complainant prior to her recovery period." In response, the agency summarily requests that we affirm the AJ's "comprehensive, well-reasoned and legally sound" decision.
ANALYSIS AND FINDINGS
Upon review of the record, we agree with the AJ that there were no genuine issues of material fact in dispute that would have required a hearing. It is undisputed that complainant could not meet the physical demands of her Program Analyst position. It is undisputed that she failed to provide the agency with any information regarding when she would be able to return to work. It is undisputed that the agency created a limited duty assignment which was consistent with her medical restrictions and did not require her to perform the essential functions of her position, and which it offered in January 2006 after complainant applied for workers compensation. Finally, it is undisputed that complainant did not request accommodation until after she was terminated.
The Commission's task on appeal is to determine whether the AJ's conclusions of law are correct. We assume arguendo that complainant is an "individual with a disability." To be entitled to coverage under the Rehabilitation Act for relief for the claim raised herein, she must also prove that she is a "qualified" individual with a disability, or in other words that she can perform the essential functions of her position with or without reasonable accommodation. Complainant bears this burden of proof, by a preponderance of the evidence.
As it is undisputed that complainant's back impairment prevented her from performing the full range of her Program Analyst duties. If she had wanted the agency to provide her with a reasonable accommodation, she was under an affirmative obligation to request it prior to the agency taking action for conduct or performance related problems.
Although complainant does not dispute that she failed to make a timely request for accommodation, the AJ addressed arguments made by her counsel in response to the agency's motion for summary judgment. First, complainant argued that the agency should have re-offered her the limited duty assignment after she had recovered from her surgery as a reasonable accommodation. We agree with the AJ's analysis. He found that the agency "created" the assignment for complainant; that it had no duty to do so under the Rehabilitation Act; and that it therefore had no duty to renew the offer as a form of reasonable accommodation. The AJ also correctly found that complainant failed to prove that there was a vacant funded position available, for which she was qualified and to which she could have been reassigned. Second, the AJ addressed complainant's argument that the agency should have offered her leave. Again, we agree with the AJ's analysis. Leave is a form of reasonable accommodation, but the circumstances under which an agency is obligated to provide it vary. At a minimum, an employee must provide the agency with sufficient information about when he/she will likely be able to return to work. Here, there is no dispute that complainant failed to do so even though her supervisor specifically asked her to on two occasions during the Summer of 2006.
In conclusion, we find that the AJ correctly concluded complainant is not entitled to coverage under the Rehabilitation Act because she failed to prove that she was a "qualified individual with a disability." Accordingly, the agency is not liable under the Rehabilitation Act for terminating complainant.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final action.
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
March 4, 2010
__________________
Date
2
0120083807
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013