01a50355_r
03-21-2006
Mary F. Cowan, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Mary F. Cowan v. Department of Defense (Defense Commissary Agency)
01A50355
March 21, 2006
.
Mary F. Cowan,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A50355
Agency No. 03-EA-NG-020
DECISION
Complainant appeals to the Commission from the agency's September 23, 2004
decision finding no discrimination. Complainant alleged discrimination
on the color (white), sex (female), disability (both hands, both wrists,
disk neck, middle portion of back, disk in lower spine, stress, panic
attacks, and under psychiatric care<1>), and in reprisal for prior
protected activity when:
On January 23, 2003, complainant's supervisor failed to reasonably
accommodate complainant.
On January 23, 2003, complainant's supervisor stated to complainant,
�You are not crippled in the hand, you're crippled in the head.�
On March 16, 2003, complainant's supervisor read complainant's medical
file in front of four to five of complainant's coworkers.
Complainant's supervisor required complainant to complete the National
Agency Check and Inquiry (NACI) paperwork.
Complainant's supervisor filed a temporary restraining order against
complainant based on medical information sent to the MacDill AFB
Commissary.
Regarding claim 1, the agency found that it did accommodate complainant's
medical restrictions concerning lifting and repetitive motion.
The agency found that it reasonably accommodated complainant's medical
restrictions by placing complainant in the sandwich shop, pulling
tags off the shelf, and using a cash register with a scanning gun
for items over eight pounds. The Commission finds that these duties
do not violate any medical restrictions as described by complainant's
medical evidence. Although complainant claims that she sometimes exceeds
these duties, the record indicates that she was not required to exceed
these limitations. Furthermore, we find that the agency engaged in a
good faith interactive process in order to determine the appropriate
accommodations for complainant. Therefore, although we do not address
whether complainant is a qualified individual with a disability under
the Rehabilitation Act, we find that assuming complainant was disabled,
the agency reasonably accommodated any such disabilities.
Regarding claim 2, complainant's supervisor denied making the comment
at issue. There is no evidence apart from complainant's assertion that
the comment at issue was ever made. Therefore, we find that complainant
has failed to show by a preponderance of the evidence that her supervisor
made the comment at issue in claim 2.
Regarding claim 3, complainant's supervisor denies reading complainant's
medical file in front of complainant, Person A, and other cashiers.
Complainant was unable to provide the names of the cashiers who
purportedly were present. Person A, however, did provide a written
statement corroborating complainant's assertion. Person A states that
she accompanied complainant on March 16, 2003, as a �witness� when
complainant went to speak with her supervisor. The EEO Investigator
states that Person A is not a federal employee. Although Person
A states that complainant's supervisor read some medical letters in
front of Person A and complainant and within hearing distance of other
cashiers, neither Person A nor complainant specify that the Supervisor
mentioned complainant's diagnosis or symptoms. The Commission finds
that complainant has failed to show by a preponderance of the evidence
that the Supervisor improperly revealed complainant's medical condition
or diagnosis to the cashiers or even Person A.
Regarding claim 4, the agency asserts that many other employees were also
required to update their NACI paperwork and that this was a requirement
for all employees. The Commission finds that complainant has failed
to show by a preponderance of the evidence that the agency's action was
motivated by discrimination.
Regarding claim 5, we find that this claim should be dismissed for failure
to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The action
complained of by complainant concerns a private legal matter initiated by
complainant's supervisor over which the Commission has no jurisdiction.
The agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 (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
March 21, 2006
__________________
Date
1These are the self-described purported
disabilities listed in complainant's affidavit.