Lu-Ann Wulff, Complainant,v.Dr. Steven Chu, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionMay 6, 2009
0120071158 (E.E.O.C. May. 6, 2009)

0120071158

05-06-2009

Lu-Ann Wulff, Complainant, v. Dr. Steven Chu, Secretary, Department of Energy, Agency.


Lu-Ann Wulff,

Complainant,

v.

Dr. Steven Chu,

Secretary,

Department of Energy,

Agency.

Appeal No. 0120071158

Hearing No. 350-2005-00216X

Agency No. 05-0001-AL

DECISION

On December 28, 2006, complainant filed an appeal from the agency's

final action 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 Personnel Security Specialist in the Adjudication Team,

Personnel Security Division, at the agency's National Nuclear Security

Administration Service Center located in Albuquerque, New Mexico.

Complainant first notified the agency of her request for reasonable

accommodation for her knee and stomach conditions beginning on August

18, 2004. Complainant had knee surgery on October 21, 2004. Complainant

was on leave from September 15, 2004, through November 14, 2004, as a

result of pre-surgery and post-surgery instructions from her doctor.

Complainant's first day back to work following her surgery was November

15, 2004.

Complainant filed an EEO complaint on October 18, 2004, alleging she

was subjected to discrimination. In its acceptance letter, the agency

accepted complainant's complaint that she was discriminated against on

the bases of disability (degenerative joint disease and irritable bowel

syndrome) when:

1. Complainant's request to be reassigned to another supervisor as part

of a reasonable accommodation was denied on August 20, 2004;

2. Complainant was given additional work assignments on August 26, 2004;

3. Complainant's request for overtime was denied on September 10, 2004;

4. Complainant's reasonable accommodation request to be relocated to

another office space was denied on September 14, 2004; and

5. Complainant's reasonable accommodation request to telecommute from

home was denied on September 16, 2004.

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. Thereafter, the agency submitted a Motion and

Memorandum of Law in Support of Summary Judgment on February 3, 2006.

Complainant failed to respond to the agency's motion. The AJ assigned

to the case granted the agency's motion for a decision without a hearing

and issued a decision without a hearing on October 18, 2006, finding

complainant was not subjected to discrimination based on her disability.

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).

On appeal, complainant states that her complaint was not only based on

her disability, but it was also "for retaliation for not being treated

equally as the other employees in my organization to include contractors."

Complainant claims that if her witnesses had been interviewed they

would have provided proof her complaint is legitimate. Complainant

states that the office she occupied on the third floor was too small.

Complainant claims that others were allowed to work at home since 2001.

Complainant states that her disability is not temporary. She states

that she has numerous documents to prove that there was retaliation and

harassment against her and states she would have provided documentation

if requested.

ANALYSIS AND FINDINGS

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. 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.

If a case can only be resolved by weighing conflicting evidence, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, an AJ should not rule in favor of one party without holding

a hearing unless he or she ensures that the party opposing the ruling

is given (1) ample notice of the proposal to issue a decision without

a hearing, (2) a comprehensive statement of the allegedly undisputed

material facts, (3) the opportunity to respond to such a statement, and

(4) the chance to engage in discovery before responding, if necessary.

According to the Supreme Court, Rule 56 itself precludes summary

judgment "where the [party opposing summary judgment] has not had the

opportunity to discover information that is essential to his opposition."

Anderson, 477 U.S. at 250. In the hearing context, this means that the

administrative judge must enable the parties to engage in the amount

of discovery necessary to properly respond to any motion for a decision

without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

Upon review, we find the AJ's grant of summary judgment in this case

was appropriate. Assuming complainant is a qualified individual

with a disability, we find she failed to show that she was denied

the reasonable accommodation of being assigned to another supervisor.

The record reveals complainant submitted an August 18, 2004 letter from

her doctor noting that he was treating complainant for stomach and bowel

problems related to stress on the job and right knee pain causing her

to be unable to stand for any length of time. Her doctor requested the

agency "consider moving her out of her division to a less stressful area."

The doctor noted complainant was "unable to do the stressful work because

of the aggravation of her colitis." Complainant met with the Manager,

Personnel Security Division, (Manager 1) to discuss her health problems

and problems complainant was having with her supervisor. On August 20,

2004, the agency sent complainant a memorandum requesting additional

medical documentation to assist in providing a decision about her

request to be moved to a less stressful division. Complainant did

not provide further medical documentation in support of her request.

Upon review, we find no nexus between complainant's claimed disability

and the requested accommodation of moving to a less stressful division.

The Commission finds complainant failed to show that she was discriminated

against based on her disability when she was given additional work

assignments on August 26, 2004. The record reveals that as a result of

her knee impairment complainant requested in August 2004, not to travel.

As a result, the agency excused complainant from traveling to Kansas City

and gave her the identified assignments in lieu of travel. Complainant

failed to show that the agency's legitimate, non-discriminatory reason

for its actions was a pretext for discrimination.

The agency denied complainant's request to work overtime on September

10, 2004. Complainant's supervisor explained the request was denied

based on several factors including that complainant needed additional

mentoring and her past performance. Complainant's supervisor determined

overtime was not needed during this period and denied overtime to other

individuals under her supervision during the same period. We find

complainant failed to show that the agency's actions were motivated by

discriminatory animus.

The record reveals that on August 26, 2004, complainant wrote to Manager

1 expressing concerns about the distance from her desk to her work files

and the accessibility of her work area on the third floor. Manager 1

met with complainant on September 2, 2004, to discuss her concerns.

Complainant was out of the office on sick leave from September 15,

2004, through November 14, 2004. On September 23, 2004, the agency

sent complainant a letter to her home noting that "[a]ll office

spaces are configured to be ADA accessible," but offering to either

have complainant's personally owned refrigerator "removed to open up

the entrance to [her] work area" or to "move [her] to a hallway office

where access would be easier." On November 16, 2004, complainant wrote

a letter to Manager 1 stating that on her first day back to the office

following her knee surgery, she has been constantly using her knee to

do unpacking and setting up her new office which caused "a great deal of

stress and strain on [her] knee." Complainant also included a November

12, 2004 letter from her doctor stating that as she recovers from her

right knee surgery, she will have trouble with "prolonged standing,"

"trouble with a significant amount of walking," and "will not be able

to do much climbing." The agency responded to complainant's letter

offering to assist "with the extended walking to conduct interviews

on and off the base." We note the record reveals that complainant's

office was moved from the third to the first floor as a result of the

reorganization that occurred prior to complainant's return to the office.

Further, we note the record reveals that complainant's supervisor arranged

for her coworkers to assist her in meeting interviewees and arranged for

complainant to have local interviews rather than require her to travel.

Therefore, we find complainant failed to show that she was denied a

reasonable accommodation. Moreover, there is no evidence complainant

was forced to work beyond her medical restrictions.

Complainant also alleged that she was subjected to discrimination when

her request to telecommute from home for several weeks was denied on

September 16, 2004. Complainant failed to produce medical evidence

showing that she needed to telecommute as an accommodation for her

claimed disabilities. Complainant has not shown that working outside

of her home was violating her medical restrictions. The agency further

states that complainant's request to telecommute was denied due to the

confidential nature of complainant's work files. We note that the record

reveals that while another employee was allowed to telecommute for a

short period of time in the past, the type of work that the employee was

doing was not adjudicatory in nature, but involved training and program

information work and did not involve the privacy concerns as did the

work that complainant was performing.

Complainant's complaint also included additional allegations surrounding

actions allegedly taken by complainant's first line supervisor and a

claim that her second line supervisor discriminated against her when

she requested medical documentation to support complainant's request

for reasonable accommodation. On March 3, 2005, the agency issued a

decision dismissing these additional issues. There is no indication in

the record that complainant challenged the dismissal of these additional

issues with the AJ or raised the matter in the instant appeal. Therefore,

we will not address these issues in this decision.

With regard to complainant's claim that she also raised a claim

of discrimination based on reprisal, we note that complainant did

indicate on her complaint form that she was alleging discrimination

based on reprisal. However, we note complainant failed to allege on what

protected activity she was basing her complaint. Moreover, we note in

a May 10, 2005 electronic mail message to the investigator, complainant

acknowledged that she had never filed an EEO complaint prior to the

current one, had never been a witness in someone else's EEO complaint,

and had never participated in any EEO related activity. Accordingly,

we find complainant's claim of reprisal is properly dismissed for failure

to state a claim pursuant to 29 C.F.R. �1614.107(a)(1).

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

May 6, 2009

__________________

Date

2

0120071158

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

7

0120071158