01A10169
03-04-2002
Rosie C. Ingram, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Rosie C. Ingram v. Department of the Treasury
01A10169
03-04-02
.
Rosie C. Ingram,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A10169
Agency No. 98-4279
Hearing No. 280-99-4200X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful 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 accepted pursuant to
29 C.F.R. � 1614.405.
The record reveals that complainant, a Seasonal Customer Service
Representative at the agency's Customer Service Division of the
Kansas-Missouri District, filed a formal EEO complaint on August 19, 1998,
alleging that the agency had discriminated against her on the bases of
disability (hearing impairment in left ear) and age (D.O.B. December 14,
1933) when she was terminated from her employment during her probationary
period. At the conclusion of the investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination.
The AJ concluded that complainant failed to establish her prima facie
cases of disability and age discrimination. Assuming arguendo that
complainant established her prima facie cases, the AJ determined that
the agency articulated legitimate, nondiscriminatory reasons for its
action, namely several performance problems. Specifically, management
officials testified that complainant was terminated based on her failure
to adhere to set lunch and break times, leaving taxpayers on hold for
over ten minutes while she went out for a cigarette, excessive �idle�
and �wrap� times,<1> transferring calls to the wrong representatives,
using agency jargon with taxpayer callers, and failing to follow proper
procedures such as asking the taxpayer if the call concerned Federal
or State taxes in order to determine where to transfer the call. The AJ
then found that complainant did not dispute the performance problems and,
therefore, she did not establish that the agency's reasons were pretext
for discrimination.
Furthermore, the AJ determined that complainant failed to show that
the agency failed to provide her with a reasonable accommodation.
Complainant claimed that she was not properly trained. She noted that
during training classes, she selected a seat in the back of the room and
found it difficult to hear the instructors. Complainant indicated that
she informed one of the instructors of the problem and that instructor
moved her to the front of the class. The record noted that there were
no �assigned seats� and that complainant was not obligated to sit in the
back of the training class. Further, complainant requested more training
classes. The agency provided complainant with �on-the-job� training,
rather than formal classes. Assuming complainant established that she
is an individual with a disability, based on the record, the AJ concluded
that complainant failed to make a request for a reasonable accommodation.
The AJ also noted that, assuming she made a request, she did not establish
that her request was denied. In addition, the AJ found that complainant
failed to provide the agency with notice of her condition.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ erred when she determined that she is
not an individual with a disability covered under the Rehabilitation Act.
Further, complainant claims that she did not have poor performance and
the AJ omitted any reference to any evidence contradicting the agency's
termination letter. Finally, complainant also argues that her poor
training resulted in her conduct problems.
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.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We note that, assuming complainant established her prima facie cases of
age and disability discrimination, she failed to present evidence that
any of the agency's actions were motivated by discriminatory animus.
Further, assuming that complainant established that she is an individual
with a disability and that she requested a reasonable accommodation,
we find that the AJ's determination that she did not establish that she
was denied accommodations is supported by the record. The Commission
also notes that, based on the record, the reasonable accommodations
provided to complainant were effective. Accordingly, we discern no
basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
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
__03-04-02________________
Date
1The record indicates that �idle� denotes that
the employee is on break or at lunch and �wrap� means that the employee
is studying or preparing documents for the taxpayer.