0120072227
11-24-2009
Renee A. Fennell, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Renee A. Fennell,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120072227
Hearing No. 570-2006-00690X
Agency No. ARBELVOIR06JAN00121
DECISION
Complainant filed an appeal from the agency's final action dated March
12, 2007, finding no discrimination with regard to her complaint.
In her complaint, complainant, a Nursing Assistant, GS-0621-05, in
the agency's Child and Adolescent Psychiatry Services, Department of
Mental Health, Walter Reed (DeWitt) Army Medical Center, Fort Belvoir,
Virginia, alleged discrimination and a hostile work environment based
on disability and in reprisal for prior EEO activity when:
(1) On January 17, 2006, she became aware that her supervisor denied
her January 9, 2006 request for leave;
(2) Management denied her request for a reasonable accommodation for
performing light duties during her preparation for and recovery from
hand surgery; and,
(3) Management denied her request for a temporary reassignment to the
Woodbridge Clinic until she can perform her normal duties.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On March
5, 2007, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
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.
On appeal, complainant, via her attorney, argues that the AJ did not
consider her timely filed memorandum opposing the agency's motion
for decision without a hearing. The record indicates that the agency
filed its motion for decision without a hearing on January 31, 2007.
On February 15, 2007, upon complainant's request, the AJ granted her
request for an extension of time to respond to the agency's motion up
to March 1, 2007. Complainant stated she mailed her response on March
1, 2007. Despite her arguments, there is no evidence indicating when
the response was mailed, such as proof of the postmark date.
Nevertheless, we will assume that complainant's response, discussed
above, was filed timely. After reviewing complainant's response and her
appeal brief, we find that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
adopted the agency's motion and legal analysis thereof and determined
that the agency articulated legitimate, nondiscriminatory reasons for
the alleged actions.
With regard to claim (1), we note complainant requested leave for surgery
on her hand for the period from January 23 to 27, 2006, totaling 40 hours,
which she stated was the result of a work related injury. Complainant's
then supervisor (S1) indicated that at the time complainant submitted
her request she was on a leave restriction status and had no leave
to use. Thus, S1 sought guidance from a Human Resources Specialist
who informed S1 on January 12, 2006, that S1 should not approve any
advanced/sick leave for complainant's surgery because her workers'
compensation was denied and she did not have a work-related injury.
S1 stated that S1 denied complainant's request solely based on the Human
Resource Specialist's advice and informed her that her request would
be granted if she provide additional medical documentation showing that
she had a surgery scheduled. Subsequently, complainant did provide the
necessary medical documentation to S1 and the request was granted and she
underwent her surgery as scheduled without loss of any of the benefits
of her employment. On appeal, complainant does not dispute this.
With regard to claim (2), we note that during the relevant time,
complainant's new supervisor (S2) replaced S1 in April 2006. The record
indicates that in May 2006, complainant underwent a second operation on
her right hand. After that surgery, complainant requested accommodation
and S2 provided such. Specifically, S2 stated that a Specialist was
assigned to sit with complainant at her work station to help her perform
her duties for the entire duty day. S2 stated that despite complainant's
contention that the Specialist was absent some hours, the Specialist
did 90% of complainant's workload during the period in question.
Complainant does not dispute this.
With regard to claim (3), complainant claimed that as a result of the
surgery on her hand, she could only use one hand temporarily which made
it difficult for her to drive the 14 miles to work at her assigned duty
location at the DeWitt facility. Complainant however does not dispute
the fact that the medical documentation provided to the agency did not
place limitations on her ability to drive. S2 stated that she denied
complainant's request to be temporarily reassigned to the Woodbridge
Family Health Center, which would have required her to drive 3 miles
because she was needed at her DeWitt facility and detailing her to another
location would have adversely impacted the ability of the organization
to perform its mission. S2 indicated and complainant acknowledged that
the day-to-day duties at the other health clinic were the same as the
duties at DeWitt.
Assuming (without deciding) that complainant was an individual with a
disability, we find that complainant has not shown that she was denied
a reasonable accommodation or that any agency actions were motivated
by discrimination. Furthermore, there is no indication that complainant
was required to work beyond her medical restrictions. Moreover, we find
complainant failed to establish that she was subjected to a hostile work
environment based on her disability or in reprisal for prior protected
activity.
Accordingly, the agency's final action 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
11/24/09
__________________
Date
2
0120072227
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013