01a45737
11-10-2005
Susan E. Johnson, Complainant, v. Department of Education Agency.
Susan E. Johnson v. Department of Education
01A45737
November 10. 2005
.
Susan E. Johnson,
Complainant,
v.
Department of Education
Agency.
Appeal No. 01A45737
Agency No. ED-2002-29-00
Hearing No. 100-2003-08283X
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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, an Accountant, Office of the
Chief Financial Officer at the agency's Washington, D.C. facility,
filed a formal EEO complaint dated September 27, 2002, alleging that the
agency discriminated against her on the basis of disability (recurring
depression) when:
(1) Complainant was denied a promotion to the GS-12 level;
Complainant was denied a reasonable accommodation to work credit hours;
Complainant did not receive a cash award equal to that received by
other employees doing similar work;
On November 1, 2002, complainant was placed on Leave Without Pay (LWOP)
on the Columbus holiday;
On February 28, 2003, complainant was denied 72 hours LWOP as a
reasonable accommodation; and
Complainant was subjected to a hostile work environment.
Complainant requested a hearing before an EEOC Administrative Judge (AJ)
on her complaint. On July 14, 2004, the AJ issued a decision without
a hearing, finding no discrimination.
The AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions.<1> Specifically, the AJ noted that the agency
indicated that complainant was not promoted to the GS-12 level because
of her frequent absences from the office, stated that she was not at
work a sufficient amount of time to merit consideration for promotion,
could not be assigned a GS-12 level of duties and noted that her then
current workload had to be regularly reassigned to others to ensure
its completion. The AJ noted that agency officials indicated that they
granted complainant the opportunity to work at home, they simply did
not do it in the exact manner that complainant thought it should have
been done. Further, the AJ stated that the agency officials indicated
that complainant consistently received cash awards that are within $5.00 -
$10.00 of the award sums received by similarly situated employees. The AJ
noted that the agency explained that the manner in which complainant's
Columbus Day time and attendance was handled had no relationship to
her disability, but rather was determined by guidance provided by the
agency's Denver payroll personnel. The AJ noted that the agency also
indicated that complainant ultimately received the 72 hours of LWOP
that she requested, although once again, not in the exact manner or time
frame that she expected. Finally, the AJ found that the agency actions
in this case do not rise to a level that supports a claim of harassment.
The AJ concluded that complainant failed to set forth adequate material
evidentiary facts that support her allegations of discrimination.
The agency's July 27, 2004 final order fully implemented the AJ's
decision.
On appeal, complainant contends that she was a qualified individual with
a disability. Complainant states that her disability and her need for
reasonable accommodation were known to her supervisors from her first
year of employment at the agency. Complainant claims that she was denied
reasonable accommodation to work credit hours as replacement for missing
certain regular hours when she was unable to work due to her disability.
Complainant states that when Supervisor A became her first-line supervisor
in March 2000, he changed the reasonable accommodation arrangement of
flexible hours for her by stating that although she may continue to work
credit hours, she must first receive approval from her team leader prior
to performing the work. Complainant disputes the agency's assertion that
she agreed to Supervisor A's provision that she seek approval prior to
working credit hours.
Complainant also states that on November 19, 2001, she became eligible for
a career-ladder promotion opportunity from GS-11 to GS-12. She states
that Supervisor A and Supervisor B, her second-level supervisor, denied
her the opportunity for promotion to a GS-12 because of her disability.
Complainant states that in response to her request for 72 hours LWOP,
Supervisor A requested that she meet with him when she gets into work.
Complainant stated that since she was having difficulty getting into
work, she requested that Supervisor A not condition his response to her
leave request on her having to come to the office. When complainant
did not receive a reply from Supervisor A for over a week, she states
that she brought the matter to the attention of the EEO Investigator.
Complainant explains that Supervisor A then requested Person 1 of the
Human Resources Unit prepare a letter in response to complainant's LWOP
request requesting documentation of complainant's medical condition.
Complainant states the letter caused her harm and she perceived it as
a threat and in retaliation for earlier charges.
With regard to her claim that she was denied an equitable cash award,
complainant stated that the record shows that there was a �secret� grade
level award module at the agency. Complainant states that her written
performance ratings had been very good and excellent and she states that
her award should not have been based on the lowest performance factor
of �good.�
With regard to her claim that she was discriminated against when she
was placed on LWOP on Columbus Day, complainant states that the Denver
Payroll cited 25-year old Comptroller-General Opinions which pre-date
the Americans with Disabilities Act.
In support of her hostile work environment claim, complainant cites
her psychiatrist and psychotherapist's letters describing the impact
of her job on her medical condition. Complainant claims that she has
missed more work in the same time frame that the agency has denied her
request for reasonable accommodation. She notes that her attendance
percentages at work have repeatedly gone down which she claims supports a
reasonable inference that her attendance was related to the discrimination
perpetrated by the agency.
In response to complainant's appeal, the agency argues that complainant
failed to timely raise her claim that she was denied a career ladder
promotion to a GS-12. Additionally, the agency argues that complainant
has not shown that she was qualified to do work at the GS-12 level.
The agency also argues that complainant's claim that she was denied
the opportunity to work credit hours was untimely raised. Further,
the agency notes that complainant never pointed to an actual request
for credit hours that was denied by Supervisor A.
With regard to complainant's claim that she was denied an equitable cash
award, the agency notes it is undisputed that complainant received a
$220.00 award for her �good� rating during the relevant time frame.
The agency states that the only other person under Supervisor A's
supervision who was a GS-11 and who received a �good� rating for
the same rating period was Employee X who received a $225.00 award.
The agency claims it is undisputed that complainant missed more time
than any other employee in her unit and argued that given the totality
of the circumstances complainant cannot prove disparate treatment.
With regard to her claim that she was placed on LWOP on Columbus Day,
the agency noted there is no dispute that complainant did not work on
the paid holiday or before or after the paid holiday. Thus, the agency
claims that complainant was not being denied any benefit.
With regard to complainant's claim that she was denied 72 hours of
LWOP, the agency notes that Supervisor A stated that complainant had
used over 600 hours of LWOP prior to her request and merely asked that
she discuss the request with him. Supervisor A stated that he then
worked with the Office of Human Relations to issue complainant a letter
requesting a doctor's statement for what she was listing as a �serious
medical condition.� The agency states that complainant never met with
Supervisor A and left for her trip. The agency stated complainant was
never charged AWOL but granted the 72 hours of LWOP.
We note that complainant submitted an October 22, 2004
�Complainant-Appellant's Reply to Agency Statement of Opposition to Filed
Appeal� which we find was untimely filed, as it was not filed within
thirty days of the date of the filing of complainant's appeal. In the
October 22, 2004 Reply, complainant states that she did not receive notice
of the �Agency's Tendering of Appeal File for [complainant's] Appeal�
until after her appeal brief was filed. She states that at this time she
realized that the agency failed to submit the complete complaint files
to the Commission. Complainant submits a short statement and attaches a
series of documents to her Reply. Specifically, in her Reply, complainant
requests drawing an adverse inference against the agency for its alleged
failure to comply in submitting all relevant documents to the Commission.
Complainant also states that her removal from the agency on August 6,
2004, should be considered in the present case. Finally, complainant
claims that the AJ erred when he stated that the agency indicated that
it granted the opportunity to work from home.
In response to complainant's October 22, 2004 Reply, the agency submitted
an �Addendum to: Notice: Tendering of Appeal File for [complainant]� dated
October 26, 2004. The agency stated that it submitted all agency appeal
files and related case files, including the summary judgment binder,
to the Commission on September 27, 2004.
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. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We note that complainant does not challenge the definition
of the issues defined by the AJ. Additionally, we find that complainant
failed to show that the AJ improperly excluded her two retaliation
�complaints� dated May 6, 2004, and July 9, 2004.
In the present case, we find with regard to issues (1) and (3) -
(6) that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note in
discussing issue (2), the AJ stated that the agency afforded complainant
the opportunity to work from home as an accommodation but not in the
manner she requested. We note, however, that there is no evidence in
the record that the agency afforded complainant an opportunity to work
from home. Nor is there evidence that complainant requested to work
from home as a reasonable accommodation for her condition. Rather,
complainant claimed that she was denied the opportunity to work credit
hours as a reasonable accommodation for her disability. We find that
the record reveals that the agency permitted complainant the opportunity
to work credit hours after informing her supervisor in advance of the
dates she planned to work. We note that complainant does not identify
specific dates she was not allowed to work credit hours. The Commission
finds that complainant has not shown why she should be permitted to work
credit hours without informing her supervisor in advance of the hours to
be worked in order to be able to function in her position. Upon review,
we find complainant failed to show her purported disability was not
reasonably accommodated by the agency. Thus, construing the evidence
to be most favorable to complainant, we note that complainant failed
to present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected classes.<2>
Accordingly, the agency's final order 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
November 10, 2005
__________________
Date
1The AJ also noted that on May 6, 2004, and July 9, 2004, complainant
filed motions postured as �complaints� charging retaliation under
section 503 of the Americans with Disabilities Act and requesting that
the Commission take direct jurisdiction of these �complaints.� The AJ
denied complainant's motions.
2We do not address in this decision whether complainant is a qualified
individual with a disability.