Marian D. Rollins, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 2, 2000
01972251 (E.E.O.C. Feb. 2, 2000)

01972251

02-02-2000

Marian D. Rollins, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Marian D. Rollins v. Social Security Administration

01972251

February 2, 2000

.

Marian D. Rollins,

Complainant,

v.

Kenneth S. Apfel,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01972251

Agency No. 960068

DECISION

Complainant filed a timely appeal from a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

bases of age (46), and physical disability (insulin dependent diabetes

and cardiac disorder), in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 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 she was not

selected for a competitive promotion to the position of GS-10 Insurance

Claims Examiner (Position) on October 6, 1995. The appeal is accepted in

accordance with EEOC Order No. 960.001. For the reasons discussed herein,

the agency's decision is VACATED and REMANDED in accordance with the

following ORDER, and the applicable EEOC Regulations.

During the relevant time, complainant was employed as a GS-9 Benefit

Authorizer at the agency's Kansas City, Missouri office. She applied for

the Position under vacancy announcement No. 188-95, which advertised

three openings, and was one of twelve candidates placed on the Best

Qualified List (BQL). The office was organized by sections, and each

section supervisor was asked to ranked those candidates in their

section who appeared on the BQL. The ranking was then discussed with

the Manager of the sections (M), who communicated the rankings and

supervisor comments to the Selecting Official (SO) who was responsible

for the ultimate selections. The Office Director, the Concurring Official

(CO), approved all three of SO's selections. Two candidates from Section

2 were selected with section rankings of 2 and 3 respectively, and a

candidate from complainant's section, Section 6, whose section ranking

is not disclosed, was also selected. All of the selectees were under

the age of 40 and none of them had a disability.

According to the record, when complainant learned of her non-selection,

she asked her supervisor (S) about her ranking, and was told she ranked

"highly." When complainant then queried M, he informed her that her

ranking was not high enough to warrant her selection for the Position,

and that the lower ranking was primarily the consequence of her excessive

use of leave which diminished her dependability, an important factor in

the selection. M stated that he merely passed along S's recommendations

to SO, and offered no input of his own. SO testified that she relied

heavily on the section rankings in her decision, and stated that she

did not consider leave usage per se, but did consider dependability as

an important factor.

S, M, SO, and CO all testified that they had no knowledge of

complainant's claimed disabilities, with S indicating that she was

aware that complainant had a heart attack in 1993, but that she did

not appear to suffer from any residual illness as a consequence. S and

M both testified that they were unaware that complainant's leave usage

was related to a disability. Complainant argues that she has worked in

the same office with these officials for nearly twenty years and that

they are all aware of her disabilities. She testifies that at least some

of them have observed her at her desk performing glucose testing for

her diabetes. She further states that she documents her leave requests

with physician verifications reflecting these disabilities so that these

officials know, in fact, that she is disabled.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint on December 6,

1995. At the conclusion of the investigation, complainant was issued a

FAD, finding no discrimination.

In its FAD, the agency did not address whether or not complainant

established a prima facie case of age or disability discrimination;

instead, it concluded that the agency articulated a legitimate

non-discriminatory reason for its selection which was not

pretextual. Specifically, the FAD found that the agency selected

only those candidates which ranked 1 or 2 in their section, and

that complainant was properly ranked lower because of her "reduced"

dependability as a result of high leave usage and her need to be more

tactful.

On appeal, complainant repeats her contention that all of the involved

management officials were well aware of her disabilities and that all of

her leave was requested and approved by management. The agency requests

that we affirm its FAD.

By regulation, the federal government is charged with becoming

"a model employer" of individuals with disabilities. This goal was

expressed by Congress when it enacted the Rehabilitation Act. 2 Bradley

v. U.S. Postal Service, EEOC Appeal No. 01962747 (October 22, 1998)

(citing Gardner v. Morris, 752 F.2d 1271 (8th Cir. 1985); Prewitt, 662

F.2d at 301.) Federal agencies must make reasonable accommodation for the

known physical and mental limitations of a qualified disabled employee,

unless the agency can demonstrate that accommodation would prove to be an

"undue hardship." See 29 C.F.R. 1630.2(o) and (p).

To establish a prima facie case of disability discrimination,

complainant must first establish that she is an "individual with a

disability." An "individual with a disability" is defined as one who

(1) has a physical or mental impairment that substantially limits one or

more major life activities, (2) has a record of such impairment, or (3)

is regarded as having such an impairment. 29 C.F.R. 1630.2. Major life

activities include activities such as caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing, learning,

and working. 29 C.F.R. 1630.2(i). The factors which the Commission

recognizes as determining whether an impairment substantially limits a

major life activity include the duration of the impairment, the severity

of the impairment, and its permanent or long-term impact. See Minehan

v. Department of the Army, EEOC Petition No. 03970092 (November 12,

1997); Terrangnoli v. Department of the Army, EEOC Appeal No. 01942810

(October 2, 1995). Moreover, since the time the agency issued its FAD,

the Supreme Court has held that the determination of whether a person has

a "disability" must be based on his or her actual condition at the time

of the alleged discrimination, and therefore must take into consideration

whether the person is substantially limited in a major life activity when

using a mitigating measure, if any, such as medication. Sutton v. United

Airlines, Inc., 119 S. Ct. 2139 (1999); Murphy v. United Parcel Service,

Inc., 119 S.Ct. 2133 (1999).

Exclusive of complainant's own testimony, our review of the record reveals

that it is devoid of any evidence, medical or otherwise, describing

complainant's claimed disabilities. Accordingly, with reference to the

law and regulations cited above, we find that the record of evidence is

insufficient upon which to base the instant determination. Therefore,

the agency must conduct a supplemental investigation as described in

the ORDER below.

ORDER

1) The investigator must contact complainant and request that she submit

pertinent medical documentation which provides a clinical diagnosis of her

claimed disabilities and verifies the type of impairment she suffered as a

consequence of these disabilities at the time this matter arose. Ideally,

this documentation should include the following: physician(s) opinion(s)

assessing complainant's diabetes and cardiac disorder during the 1993-1995

period; 1993-1995 medical examination reports, including the results

of any testing; and a list of medications, including dosages and any

side-effects experienced by complainant, prescribed during the 1993-1995

period.

In addition to this medical documentation, complainant should also submit

a sworn statement describing in detail the limitations she experienced

as the result of her diabetes and cardiac conditions during this period,

including an assessment of the effectiveness of medications or any other

mitigating measures she may have used to control her symptoms.

2) The investigator should obtain copies of complainant's 1995 requests

for leave, including physician certifications. If the agency no longer

retains these, complainant should be contacted for her own copies. Should

these be unavailable, complainant's physicians should be contacted and

asked to submit copies of the certifications requested from them by

complainant.

3) Complainant testifies that over the years she has been observed

at her desk performing glucose testing. Complainant's supervisors

and co-workers during the 1993-1995 period should be contacted and

asked whether they witnessed complainant as she claims. Complainant's

co-workers and supervisors should also be asked whether they were aware

of complainant's disabilities, and if so, to provide an explanation

including a statement of whether they knew, or assumed, that her leave

was related to the claimed disabilities.

4) This supplemental investigation must be fully completed within sixty

(60) calendar days of the date this decision becomes final. Thereafter,

the agency will provide the complainant, within thirty (30) calendar

days from the date the agency completes the supplemental investigation,

an opportunity to respond to the supplemental investigative report. The

agency shall then take any action appropriate and consistent with

complainant's response, and issue a new final agency decision within

thirty (30) calendar days of complainant's response or, if complainant

fails to respond, within thirty (30) calendar days following the last

day complainant would have been permitted to respond. Copies of the

completed supplemental investigation and new final agency decision must

be submitted to the Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory. The

agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report

shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503(a). The complainant also has

the right to file a civil action to enforce compliance with the

Commission's order prior to or following an administrative petition

for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408)

and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the

right to file a civil action on the underlying complaint in accordance

with the paragraph below entitled "Right to File A Civil Action." 29

C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or a

civil action on the underlying complaint is subject to the deadline

stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil action,

you have the right to file such action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that

you receive this decision. In the alternative, you may file a civil

action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action win 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 2, 2000

__________________

Date

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

______________________________

1The 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.