01975726
09-18-2000
Susan L. Berman v. Securities and Exchange Commission 01975726 09-18-00 . Susan L. Berman, Complainant, v. Arthur Levitt, Jr., Chairman, Securities and Exchange Commission, Agency.
Susan L. Berman v. Securities and Exchange Commission
01975726
09-18-00
.
Susan L. Berman,
Complainant,
v.
Arthur Levitt, Jr.,
Chairman,
Securities and Exchange Commission,
Agency.
Appeal No. 01975726
Agency Nos. 46-94 & 07-96
Hearing Nos. 100-95-7390X & 100-96-7791X
DECISION
On July 15, 1997, Susan L. Berman (hereinafter referred to as complainant)
initiated an appeal to the Equal Employment Opportunity Commission
(Commission) from a final decision of the agency concerning her complaint
of discrimination in violation of �501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq.<1> The final agency decision
was dated June 16, 1997. Accordingly, the appeal is timely filed,
and is accepted in accordance with 64 Fed.Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. �1614.405).
ISSUES PRESENTED
The issues on appeal are whether complainant proved, by a preponderance
of the evidence, that she was discriminated against on the basis of her
disability (depression), and in reprisal for prior EEO activity when:
1. on May 13, 1994, her request for a transfer from the agency's EEO
Office was denied; 2. from April 1993 through August 1994, her requests
for an altered work schedule to accommodate her disability were denied;
3. she was held to more rigid time and attendance standards than other
employees, including being charged as absent-without-leave (AWOL) on
December 8, 1993; 4. she was harassed by the former Director of the EEO
Office (Responsible Official 1; RO1); she was subjected to more severe
harassment and retaliation after requesting EEO counseling in June 1994;
6. she received a �fully successful� performance rating in August 1994,
with a rating of �minimally satisfactory� in two elements; 7. her request
that someone other than RO1 conduct her performance evaluation was denied;
8. a co-worker was present during an August 29, 1994 meeting concerning
her performance evaluation; and 9. the former Acting EEO Director
(Responsible Official 2; RO2) initiated an Inspector General investigation
in February 1995, based upon her handling of an EEO investigation.
BACKGROUND
Complainant filed formal EEO complaints in August 1994 and December 1995,
raising the above-referenced issues of discrimination. The complainant
began working for the agency as an Attorney, GS-14, in September 1992.
The complainant served as the Chief of the Investigative Branch in
the agency's EEO Office. During a discussion with RO1 in April 1993
concerning time and attendance issues, complainant asked to change her
work hours, stating that pressure at work was aggravating her depression.
Complainant stated that she offered to provide RO1 with a copy of her
prescription for Prozac, but refused to provide further documentation
because of concerns that the information would not be kept confidential.
RO1, who also has been diagnosed with depression, recommended that
complainant speak with the Disabilities Coordinator in the Personnel
Office. RO1 also offered to allow the complainant to come in to work
later, but complainant declined the offer, stating that she only needed
occasional flexibility. The complainant stated that other employees in
the EEO Office were allowed to work alternate or compressed work schedules
without providing documentation. Nevertheless, the record indicates
that RO1 allowed the complainant considerable flexibility with regard to
her arrival time. RO1 stated that she charged complainant with AWOL
in December 1993, because she failed to request leave in advance after
repeatedly disregarding office rules regarding time and attendance.
Complainant stated that, after she informed RO1 of her depression,
RO1 became more critical of her work, and undermined her supervisory
authority. The complainant cited one incident in which RO1 used profanity
during an argument; however, she acknowledged also using profanity at
that time. Complainant stated that RO1 also removed her from her Branch
Chief position. RO1 noted that the complainant agreed with the decision
to remove those duties after she expressed a desire to no longer perform
supervisory functions. The complainant's personnel records reflect that
she continued to serve in the Branch Chief position.
RO1 wrote a memorandum in April 1994 in response to a management study
which was critical of the Office. In the memorandum, RO1 made negative
comments concerning several employees, including the complainant and
another Branch Chief. Shortly thereafter, the complainant requested that
the Executive Director transfer her to another office. The complainant
also made such a request of the Chairman and an individual in the
Inspector General's office. In her May 1994 letter to the Executive
Director, complainant noted that she had clinical depression and that
her job was taking an emotional toll on her. In her subsequent undated
memorandum to the Chairman, complainant stated that the stress of her
work environment was seriously affecting her health, and aggravating
her depression. According to the record, the agency was in the process
of removing RO1 from the EEO Office at that time, and actually did so
in August 1994.
With regard to complainant's performance evaluation, the record shows
that the agency set aside the �fully successful� rating she initially
received for the 1993 to 1994 rating period. The complainant's personnel
records reflect that she received a rating of �exceeds fully successful�
for that period. RO1 stated that she asked a third party to be present
during a meeting concerning complainant's evaluation because she had
been advised to do so by her supervisor, and that a third party was
present during all employee evaluations.
The testimony of record shows that RO1 was not a good manager, treated
everyone poorly, and did not adequately address personnel problems.
These findings were essentially confirmed during the management study
of the EEO Office conducted in 1993. Specifically, RO1 was told that
she needed to comply with agency policies regarding alternate work
schedules and time and attendance. In response to the management study,
RO1 required that all employees requesting alternate work schedules do
so in writing and adhere to time and attendance policies.
In January 1995, RO2 contacted the Inspector General's office because
of concerns raised regarding the complainant's handling of an EEO
investigation and the release of confidential information. According to
the testimony of the Inspector General and an attorney in his office, RO2
expressed concern about whether to make the referral. The complainant
also asserted that RO2 had a surveillance camera installed in the EEO
Office to monitor her arrival and departure. RO2, however, testified
that the camera was installed on the advice of security staff, who found
the EEO Office door open late at night on several occasions.
The agency complied with all procedural and regulatory prerequisites, and
on April 18, 1997, an EEOC Administrative Judge (AJ) issued a recommended
decision finding that complainant had not been subjected to disability
or reprisal discrimination with regard to issues 2 through 9. The AJ,
however, concluded that the agency failed to reasonably accommodate the
complainant's request for a transfer. Thereafter, the agency issued
a final decision dated June 16, 1997, rejecting the AJ's finding with
regard to the latter issue of accommodation. The agency adopted the
AJ's determinations regarding the remaining issues. It is from this
decision that complainant now appeals.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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).
After a careful review of the record, the Commission finds that the
AJ correctly determined that complainant was not subjected to reprisal
discrimination with regard to any of the matters alleged. The AJ found
that the agency articulated legitimate, nondiscriminatory reasons for the
actions at issue, and that complainant failed to prove that the stated
reasons were a pretext for prohibited discrimination. Specifically,
the AJ concluded that the record contained no evidence of retaliatory
motive on the part of RO1 or RO2. We therefore discern no basis to
disturb the AJ's finding that complainant was not discriminated against
in reprisal for prior EEO activity.
With regard to the complainant's issue that she was denied reasonable
accommodation, the Commission agrees with the AJ that complainant was not
subjected to discrimination with regard to the denial of an alternate work
schedule. Complainant did not submit any medical documentation to the
agency until November 1994. Further, that brief report, dated September
24, 1994, only addressed complainant's condition after July 18, 1994.
While complainant asserted that she was diagnosed with depression at an
early age, she failed to submit any medical documentation concerning her
condition at the time she requested an alternate work schedule. In so
finding, we note that RO1's refusal to accept a copy of a prescription
for Prozac was not unreasonable. Further, the record clearly shows that
RO1 afforded complainant considerable flexibility with regard to her
arrival, frequently allowing complainant to come in after her scheduled
starting time, and the complainant had advised RO1 that she did not
need an alternate work schedule and that she believed the issue had been
resolved. Finally, while other employees' requests for an alternate work
schedule were granted by RO1, those individuals submitted their requests
in writing, as required by agency policy, while complainant did not.
The Commission further finds that the AJ correctly determined that the
agency failed to properly act on complainant's May 1994 request for
reasonable accommodation. At the time of her request, we find that the
complainant was a qualified individual with a disability. See Prewitt
v. USPS, 662 F.2d 292 (5th Cir. 1981). A disabled individual is one who:
1. has an impairment which substantially limits one or more major life
activities; 2. has a record of such an impairment; or 3. is regarded
as having such an impairment. 29 C.F.R. �1630.2(g).<2> Major life
activities include caring for one's self, performing manual tasks,
walking, seeing, breathing, learning, and working. 29 C.F.R. �1630.2(i).
Complainant made several requests for reasonable accommodation, in the
form of a transfer and working at home, from May 1994 through July 1994.
At that time, the record shows that she was being treated for depression,
which her doctor indicated caused her to experience �low self esteem,
loss of confidence in her work capabilities, despair, social withdrawal,
impaired concentration, insomnia, headaches, gastrointestinal problems,
inability to experience pleasure in anything, and fatigue.� (Report of
Investigation, Volume 1, p. 235).<3> As noted by the AJ, complainant
advised several agency officials of her depression, and indicated that
she was requesting a transfer because the situation in the EEO Office
was �taking a serious toll on [her] health.� (Report of Investigation,
Volume 1, p. 249). Complainant's doctor also indicated that her symptoms
were made worse by adverse working conditions.
The Supreme Court recently held that whether measures mitigate an
individual's impairment should be taken into account in determining
if the individual is disabled. Sutton v. United Airlines, Inc.,
527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527
U.S. 516 (1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999).
Complainant's doctor noted that, even while being treated with medication,
complainant's symptoms worsened significantly after May 1994, due to the
stress she experienced. Thus, we find that complainant's depression, even
in the medicated state, substantially limits her cognitive functioning
and ability to interact with others. Further, the record shows that
complainant was able to perform the essential functions of her job
in a more than satisfactory manner, as evidenced by her performance
evaluations.
As noted by the AJ, the agency failed to take any action with regard to
complainant's request for a transfer, and, in fact, did not treat her
memoranda as requests for accommodation. While complainant discussed
the matter with at least two individuals, the agency did not request
information concerning her disability or limitations, and did not refer
the matter to the Personnel Office. The agency asserted that it did not
act because it was in the process of removing RO1 from the EEO Office;
however, that action did not occur until approximately three months after
complainant made her first request for accommodation. While the agency
was not required to provide complainant with a transfer, the agency
was required to explore effective accommodation for complainant, such
as allowing complainant to work at home for a portion of her work week,
allowing her to use leave without pay, or providing her with a temporary
detail assignment, during the period of time prior to RO1's removal
from the Office. Thus, we find that the AJ correctly found that the
agency failed to meet its burden of providing reasonable accommodation
to complainant from May 1994 until August 1994.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to affirm the agency's final decision of no
discrimination based on disability and prior EEO activity with regard to
issues 2 through 9. The Commission hereby reverses the agency's final
decision with regard to issue 1.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency is to conduct training for the Executive Director and
former Executive Assistant and Assistant to the Chairman addressing these
employees' responsibilities under equal employment opportunity law. The
training shall place special emphasis on the appropriate response to
requests for reasonable accommodation under the Rehabilitation Act.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
2. The issues of compensatory damages and attorney's fees and costs are
REMANDED to the Hearings Unit of the appropriate EEOC field office.
Thereafter, the administrative judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall issue
a final action in accordance with 29 C.F.R. �1614.110 within forty (40)
days of receipt of the administrative judge's decision. The agency shall
submit copies of the decision of the Administrative Judge and the final
agency action to the Compliance Officer at the address set forth below.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Headquarters facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has
the right to file a civil action to enforce compliance with the
Commission's order prior to or following an administrative petition
for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),
and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action."
29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
__________________________________
Frances M. Hart, Executive Officer
Executive Secretariat
____09-18-00______________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. The ADA regulations
set out at 29 C.F.R. Part 1630 apply to complaints of disability
discrimination. These regulations can be found on EEOC's website:
www.eeoc.gov.
3The doctor's report, which was dated September 24, 1994, discussed
complainant's condition as of July 1994. Nevertheless, the agency does
not assert that it was unaware of complainant's disability at the time
of her May 1994 request or that it asked for, and complainant failed to
provide documentation at that time.