01A14535_r
03-10-2003
Shari Ungar, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Shari Ungar v. Department of the Treasury
01A14535
March 10, 2003
.
Shari Ungar,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A14535
Agency No. TD 98-3105
DECISION
Complainant filed an appeal with this Commission from a final agency
decision, issued on June 21, 2001, concerning her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
The record reveals that during the relevant time, complainant was
employed as an Internal Revenue Officer at the agency's Paterson, New
Jersey facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on January 30, 1998. Therein, complainant
claimed that she was discriminated against on the bases of disability
and in reprisal for prior EEO activity.
In its final decision, the agency framed the claims as follows:
(1) On October 15, 1997, complainant was not selected for promotion to
the position of Revenue Officer, GS-12;
(2) On September 5, 1997, complainant's request for a flexible starting
time as a reasonable accommodation for her disability was not approved;
and
(3) The agency charged her with Absent Without Leave (AWOL).<1>
The complaint was accepted and an investigation was conducted.
Following the investigation, on May 14, 1998, the agency issued a
decision dismissing a portion of the complaint. Specifically, the agency
dismissed claim (1) on the grounds that complainant raised the matter in
a negotiated grievance procedure. The agency determined that on November
3, 1997, complainant filed a grievance regarding her non-selection for
the Grade 12 position.
Complainant filed an appeal from this decision. By letter dated January
19, 2000, the Commission notified the parties that in accordance with
the revised regulations, particularly 29 C.F.R. � 1614.107(b), partial
dismissals are not appealable until final action is taken on the remainder
of the complaint. Consequently, claim (1) was remanded to the agency for
consolidation with the remainder of the complaint and further processing.
Thereafter, the agency informed complainant of her right to request
a hearing before an EEOC Administrative Judge (AJ) or alternatively,
to receive a final decision by the agency. When complainant failed to
respond within the time period specified in 29 C.F.R. � 1614.108(f),
the agency issued a final decision.
In its June 21, 2001 decision that is the subject of the instant appeal,
the agency again dismissed claim (1) on the grounds that complainant
raised the matter in a negotiated grievance procedure that permits claims
of discrimination. According to the agency, complainant filed a grievance
regarding her non-selection for the GS-12 promotion on November 3, 1997,
prior to the filing of her formal EEO complaint.
The agency also dismissed claim (3) on the grounds that complainant
previously filed a grievance on the issue. According to complainant,
management began to charge her with AWOL after she complained of sexual
harassment by a manager. The agency concluded that the AWOL charges
were raised in an October 20, 1997 grievance and therefore complainant
had elected that forum to pursue the matter.
Regarding claim (2), complainant's request for a flexible starting
time as a reasonable accommodation, the agency found no discrimination.
The agency determined that complainant failed to establish that she is
an �individual with a disability,� and that she �did not show that she
has a physical or mental impairment which substantially limits one or
more of her major life activities.� The agency stated that the record
does not contain any medical documentation. Regarding complainant's
assertions that she submitted medical documentation in connection with
previous EEO complaints, the agency concluded that the agency decisions in
those cases found that supportive medical documentation was also lacking.
While complainant argued that her disability (depression) was obvious,
the agency disagreed with that assertion. The agency also determined
that complainant did not show that the agency knew, or should have
known of her substantial limitation. The agency found that although
complainant provided a letter from her doctor stating that she was
�diagnosed� with depression, the agency found that she did not provide
any evidence showing the agency that she was limited as a result of her
alleged disability. Further, the agency reasoned that complainant did
not have a record of a substantially limiting impairment. The agency
found that a doctor's note that was attached to complainant's workers'
compensation claim did not establish that she was substantially limited
in a major life activity. Finally, the agency was not persuaded by
complainant's argument that her supervisors regarded her as disabled.
The agency noted that while it may have adjusted her start time and was
aware of her medical condition, the agency reiterated that this was
not synonymous with an impairment which substantially limits a major
life activity. The agency found that even assuming that complainant was
�an individual with a disability,� any duty to accommodate complainant
was satisfied when her tour of duty was changed to a later start time.
Regarding complainant's claim that she was denied a reasonable
accommodation in reprisal for her prior protected EEO activity, the
agency found it �implausible� that complainant's supervisor would deny
complainant's request during the same meeting that she first learned
of complainant's prior protected activity. Assuming arguendo that
complainant established a prima facie case of reprisal, the agency
concluded that management presented a legitimate nondiscriminatory
reason for its action. According to complainant's supervisor, her
request for a flexible starting time was denied because complainant had
already been given a later tour of duty as a reasonable accommodation.
After consulting with Labor Relations and the EEO Officer, the supervisor
believed that �nothing more needed to be done." The agency found that
the record did not establish pretext, or that management's actions
were based on discriminatory animus. Accordingly, the agency found
no discrimination.
Claims (1) and (3)
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination to
be raised in a negotiated grievance procedure, a person wishing to file a
complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both. An aggrieved employee who files
a grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege discrimination may not thereafter
file a complaint on the same matter under this part 1614 irrespective
of whether the agency has informed the individual of the need to elect
or whether the grievance has raised an issue of discrimination.
Here, the record contains a copy of the negotiated grievance procedure,
which provides that �[e]mployees who believe they have been illegally
discriminated against . . . have the right to raise the matter
under the statutory procedure or the negotiated grievance procedure
of this Agreement, but not both.� The record contains a November 3,
1997 grievance filed by complainant claiming that she applied for a
GS-1169-12 position and was not selected. We find that this is the
same claim, as claim (1), that was raised in her January 30, 1998 EEO
complaint. Regarding claim (3), the AWOL charges, the record shows
that on October 20, 1997, complainant filed a grievance on this matter.
On appeal, complainant argues that she filed the grievances because
she believed that it was "the only way to get hold of the information
necessary to determine if [I] was indeed subject to discrimination
. . . ." The Commission finds, however, that by filing her grievances
before her EEO complaint, complainant elected that forum. Therefore,
the Commission finds that the agency properly dismissed claims (1) and
(3), pursuant to 29 C.F.R. � 1614.107(a)(4).
Claim (2)
Rehabilitation Act Claim
As a threshold matter, to be entitled to relief under the Rehabilitation
Act, a complainant must show that she is a "qualified individual
with a disability." An �individual with a disability� is 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(g).
Major life activities include, but are not limited to, caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. � 1630.2(i). An individual
has an impairment which substantially limits a major life activity if the
impairment renders her unable to perform that activity, or significantly
restricts the condition, manner or duration under which she can perform
that activity. 29 C.F.R. � 1630.2(j)(1). A �qualified� individual with
a disability is one who satisfies the requirements for the employment
position she holds or desires and can perform the essential functions
of that position with or without reasonable accommodation. 29 C.F.R.
� 1630.2(m). For purposes of analysis only and without so finding,
the Commission will assume that complainant is a qualified individual
with a disability.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that the accommodation would cause an undue hardship. 29 C.F.R. �
1630.9(a); see also, Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, EEOC
Notice No. 915.002 at 2-7 (March 1, 1999). Additionally, we note that
the employee must show a nexus between the disabling condition and the
requested accommodation. See Wiggins v. United States Postal Service,
EEOC Appeal No. 01953715 (April 22, 1997).
The record in the instant case reveals that complainant requested an
accommodation, a flexible starting time, for her depression. Once the
agency becomes aware that an employee is requesting a reasonable
accommodation, it may be necessary to engage in an informal,
interactive process with the individual in order to identify her
limitations, as well as potential accommodations that could overcome
those limitations. 29 C.F.R. � 1630.2(o)(3). This interactive process
should be a problem solving approach that includes: an analysis of the
job to determine its purpose and essential functions; consultations
with the disabled individual; an assessment of the effectiveness of
potential accommodations; and consideration of the disabled individual's
preferences. 29 C.F.R. � 1630, app. 1630.9; see also, Polen v. Department
of Defense (EEOC Appeal No. 01970984 (Jan. 16, 2001)(noting that if more
than one potential accommodation is effective, "the preference of the
individual with a disability should be given primary consideration;
however, the employer providing the accommodation has the ultimate
discretion to choose between effective accommodations")(quoting 29
C.F.R. � 1630, app. 1630.9).
Complainant acknowledges that the agency granted her a later tour of
duty, from 9:30 a.m. to 6:00 p.m. Complainant, however, asked her new
supervisor for a flexible starting time, wherein she could start work
anytime between 7:00 a.m. and 12:00 p.m. and leave eight and a half hours
later. Complainant's supervisor denied the request, after consulting with
Labor Relations and the EEO Manager, stating that complainant had already
been given a reasonable accommodation. Complainant contends on appeal
that this later tour of duty "did not effectively address [her] need."
The Commission notes that "[t]he duty to provide reasonable accommodation
is an ongoing one" (emphasis added). Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, EEOC Notice No. 915.002 at 46 (October 17, 2002). Some employees
may need one reasonable accommodation at one time, and at a later date,
require another type of reasonable accommodation. An employer must
consider each of these requests. See id. However, in this case, the
evidence establishes that while the agency and complainant initially
engaged in an interactive process, complainant was responsible for the
breakdown in the interactive process regarding the flexible starting time
accommodation that she sought. We note, for example, that complainant
failed to adequately describe her need for the flexible starting time.
In her affidavit, complainant's supervisor noted that complainant had
"not been very specific regarding her request to work a more flexible
schedule." We find that at the time of the request, complainant had
not provided sufficient medical documentation to support her request for
the flexible schedule as a reasonable accommodation. The agency was in
receipt of a letter from complainant's doctor dated July 17, 1997, as
described in the agency's decision, stating simply that complainant was
diagnosed with depression and her "ability to function in the morning"
was "greatly compromise[d]." Complainant also stated that her doctor
spoke on the phone with her prior supervisor, before she was given the
9:30 a.m. to 6:00 p.m. tour of duty. However, complainant did not address
why the reasonable accommodation provided by the agency was ineffective,
or why a flexible schedule that did not restrict her starting time to
9:30 a.m. was necessary. Consequently, we do not find that the agency
failed to reasonably accommodate complainant.
Title VII claim
Complainant also claimed that her supervisor's denial of her request
for a reasonable accommodation, the flexible starting time, was in
retaliation for her prior EEO activity. To prevail in a disparate
treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a
prima facie case by demonstrating that she was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
In this case, as discussed above, complainant's supervisor stated that she
did not grant complainant a flexible schedule because she believed she
was already being accommodated by the 9:30 a.m. tour of duty. She also
stated that complainant did not provide specifics on why she needed a more
flexible schedule. Complainant's supervisor also attested that this type
of schedule would be impossible to manage. For example, according to the
supervisor, management would be unable to plan work related activities
if they were unable to predict when complainant would arrive at work.
Further, the local policy prohibits employees from contacting taxpayers
after 6:30 p.m.
Because the agency has provided a legitimate, non-discriminatory reason
for its action, the burden now shifts back to complainant. We note
that complainant argues that such a schedule would not be difficult
to implement. However, she has failed to show that the supervisor's
various reasons were pretext designed to conceal discriminatory animus.
Therefore, we do not find that complainant has established that she was
discriminated against based on her prior EEO activity.
Accordingly, the agency's decision was proper and is hereby 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 10, 2003
__________________
Date
1 The Commission notes that although the
agency did not number the claims, we do so herein for clarification.