0120070580-r
02-10-2009
Mary A. Duffy, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Mary A. Duffy,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120070580
Hearing No. 370-2006-00033X
Agency No. ARSHAFTER04DEC08108
DECISION
On November 10, 2006, complainant filed an appeal from the agency's
October 12, 2006 final order 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed
timely and is accepted 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 Administrative Services Specialist, GS-9, at the agency's Fort
Shafter facility in Honolulu, Hawaii. In July 2004, the agency decided
to change the location of complainant's work unit, the Military Police
Brigade, from Fort Shafter to the Schofield Barracks, several miles
away, in order to consolidate the support staff into a single location.
Complainant objected to the move, claiming that the additional driving
distance from her home would adversely affect her due to her physical and
mental conditions. On July 28, 2004, she submitted a letter to her third
level supervisor (MO-1) requesting to be allowed to continue working at
Fort Shafter. On August 3, 2004, MO-1 sent a memo to complainant asking
for further clarification on her statement that the commute would be
"harmful to [her] health." On October 4, 2004, complainant responded
to MO-1's request with letters from three of her doctors explaining how
the commute would aggravate her arthritic knee condition, and her panic
disorder. In early December 2004, the agency requested more specific
medical documentation from her in order to determine the extent of
the agency's obligation under the Rehabilitation Act to accommodate
complainant's claimed conditions. She was also asked to authorize
the release of her medical information to the agency in order for her
request for an accommodation to be properly evaluated. Complainant did
not respond to the request for further documentation.
The move was effected on December 1, 2004, and complainant did not report
to duty at the new location at Schofield Barracks, using leave instead.
On December 8, 2004, the agency issued its reply to her request to remain
at Fort Shafter, denying her request and notifying complainant that as
of December 20, 2004, she would be expected to report to work at the
Schofield Barracks. The agency noted that as the sole Administrative
Services Specialist for the unit, her presence was needed at the
location with the staff she was to support, and was essential to the
"efficiency and effectiveness of our organization." It informed
complainant that she may be able to change her schedule to address,
in part, her commuting issues. Also available to complainant was a van
pool service, provided through the agency. Rather than change locations,
complainant opted to retire, effective February 3, 2005.
On January 31, 2005, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of disability (arthritis and
panic disorder)1 and age (71) when the agency required her to relocate
with her organization to Schofield Barracks, Hawaii, Building 3004,
and when it denied her reasonable accommodation by not allowing her to
continue working at Fort Shafter, Hawaii, Building 118, resulting in her
involuntary retirement. As relief, she requested leave restoration and
to return to work at Fort Shafter or to work as a home-based contract
employee.
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, and the AJ held a hearing on May 8, 2006 and issued
a decision on September 14, 2006. In his decision, the AJ first noted
that complainant had essentially dropped her claim of age discrimination
when she told the EEO Investigator at the Fact Finding Conference that her
complaint "had nothing to do with my age. I just threw that in." The AJ
therefore confined his analysis to complainant's claim of disability
discrimination. Regarding her panic disorder and anxiety attacks, the
AJ found that complainant had not shown that the condition substantially
limited one or more of her major life activities and that she was not an
individual with a disability with respect to her panic disorder. However,
with respect to complainant's arthritis, the AJ did find that complainant
had shown that she was disabled within the meaning of the Rehabilitation
Act because of her "significantly limited ability to walk, to stand and
to climb." The AJ then concluded that the agency had not failed to grant
complainant a reasonable accommodation for her disability, in that despite
the agency's request for more specific medical documentation regarding
her conditions, complainant had refused to cooperate with any attempt
to identify an accommodation other than her requested accommodation,
remaining at Fort Shafter, or working from home. There was testimony
at the hearing regarding the great difficulty complainant had in
climbing the one flight of stairs to her office at Fort Shafter, and
that she would also have been on the second floor at Schofield Barracks.
MO-1 testified that complainant had not asked for an office on the first
floor at the new location, which he stated would have been possible to
provide, because she was so "unwilling to consider the move under any
circumstances." The AJ specifically found MO-1 to be a credible witness,
with his testimony supported by other witnesses and the evidence in the
record. He concluded that the agency had satisfied its obligation to
engage in the interactive reasonable accommodation process, and that it
had offered reasonable and effective accommodations, including the use of
a van pool service and a first floor office at the new facility, although
not the accommodation of first choice, to complainant. With respect
to her involuntary retirement claim, the AJ found that complainant's
retirement did not rise to the level of constructive discharge.
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. Complainant filed the instant appeal, in
which she contested the AJ's findings. The agency filed a brief in
opposition to complainant's appeal.
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).
We note that the hearing testimony of several witnesses was telephonic. We
have held that testimony may not be taken by telephone in the absence
of exigent circumstances, unless at the joint request of the parties
and provided specified conditions have been met. See Louthen v. United
States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006); Sotomayor
v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006); Rand
v. Department of Treasury, EEOC Appeal No. 01A52116 (May 17, 2006).2
Here, we find that exigent circumstances existed because the witnesses
who testified by telephone were in remote locations. Therefore, we find
the AJ's use of a telephonic testimony to be harmless.
Based on a thorough review of the record, and of the arguments submitted
by both parties on appeal, including those not specifically referenced
herein, we find that the AJ's conclusion that complainant has not shown
that she was discriminated against based on her age and disability,
was correct. Although we assume, without finding, for the purposes of
analysis only, that complainant is an individual with a disability,
we find that the AJ's conclusions that she was offered an effective
accommodation, and that the agency satisfied its obligations under the
Rehabilitation Act, were supported by both the record and testimony.
The agency's implementation of that decision was also correct and we
AFFIRM the agency's finding of no discrimination.
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
February 10, 2009
Date
1 For purposes of analysis only, we assume, without finding, that
complainant is an individual with a disability.
2 In Louthen, the Commission promulgated its policy regarding
the taking of telephonic testimony in the future by setting forth
explicit standards and obligations on its Administrative Judges and the
parties. Louthen requires either a finding of exigent circumstances or a
joint and voluntary request by the parties with their informed consent.
When assessing prior instances of telephonic testimony, the Commission
will determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. In Sotomayor,
we further held that where telephonic testimony was improperly taken,
the Commission will scrutinize the evidence to determine whether the
error was harmless.
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0120070580
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120070580
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