0120090193
06-15-2010
Wanda Dennis, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Wanda Dennis,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120090193
Hearing No. 410-2008-00086X-RPD
Agency No. ED-2007-28-00
DECISION
On October 7, 2008, Complainant filed an appeal from the agency's
September 8, 2008 final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Loan Analyst at the Agency's Federal Student Aid Borrowers Services
facility in Atlanta, Georgia. On April 21, 2007, Complainant filed an
EEO complaint alleging that she was discriminated against on the bases
of disability (vasomotor rhinitis/contact dermatitis) and reprisal for
prior protected EEO activity when:
1. Complainant's requests for reasonable accommodations on August 1,
2006, and subsequent dates were denied.
2. Complainant's requests to participate in the Department's
Flexiplace program were denied.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing. Over Complainant's objections, the AJ assigned to the case
granted the Agency's July 3, 2008 motion for a decision without a hearing
and issued a decision without a hearing on August 21, 2008.
In his decision, the AJ found that the material facts were not in
dispute. Specifically, the AJ assumed for purposes of his decision,
that Complainant is an individual with a disability. Administrative
Judge's August 21, 2008 Decision (AJ Decision) at 75. The AJ observed
that Complainant suffers from a physical impairment in her sinus area.
Id. at 74. When Complainant's condition is active, she suffers a
swelling of her throat and other conditions that affect her ability
to breathe. Id. at 75.
The AJ considered that Complainant asked for the specific accommodation
that she be provided a work environment free of conditions that would
trigger a breakout of her symptoms. Id. at 76. As an accommodation to
Complainant, the AJ noted the Agency had moved Complainant's work station
and instructed other employees to refrain from entering Complainant's
workspace if they are wearing perfume or have an odor to them that might
worsen Complainant's symptoms. Significantly, during the interactive
process, the AJ found the agency had moved Complainant's workstation
five times and made other changes at her work site. Id. Ultimately,
Complainant was assigned to work in a closed room, without windows, with
a door that Complainant can close. Id. The AJ found that the Agency
had essentially provided Complainant with a nonreactive work environment,
which reasonably accommodated Complainant in the workplace. Id.
Notwithstanding the closed office provided to Complainant, Complainant
further requested approval to participate in the agency's formal
Flexiplace program so that she could work from her home as an
accommodation. Id. at 79. The AJ observed that the Agency approved
Complainant's application for Flexiplace, which permitted Complainant to
work from home on an as-needed basis. Id. at 80. However, the Agency's
Flexiplace agreement requires that the employee provide advance notice
to the Agency when the employee plans to work from home. Complainant,
the AJ found, requested on several occasions, to work from home, or to
leave her workstation and complete her work from home as an accommodation,
without advance notice. Id. at 80. On two occasions, the AJ found that
Complainant's request to work from home as an accommodation was denied.
Id. at 81, 82. Complainant's first line Supervisor, the AJ found,
explained that Complainant's work involved personal identification
information (PII) which could not be secured at Complainant's home and
Complainant did not have sufficient non-PII assignments to complete
at home.
The AJ found the undisputed evidence showed that Complainant did not
use excessive amounts of sick leave in conjunction with her disability,
but maintained a sick leave balance of 100 hours throughout the relevant
time period. Id. at 83. Further, the AJ noted that neither party
disputed that Complainant's performance during this time was more than
fully successful. Based upon Complainant's descriptions of her symptoms,
evidence of her sick leave use, together with Complainant's performance
evaluations, the AJ found that the Agency provided Complainant with an
effective accommodation by providing her with the completely enclosed
workstation. Id. at 85.
The AJ found that Complainant's request that she be permitted to work
from home as an accommodation represented an arrangement that Complainant
would have preferred, but which the agency denied for reasons of maintain
the security of PII. The AJ found the Agency presented a compelling
reason for denying requests to work from home or any remote location,
(from Complainant and people in Complainant's position (Loan Analyst))
when the primary work includes matters that contain PII. Id. at 86.
Accordingly, the AJ found that discrimination on the bases of disability
or reprisal did not occur as alleged in Complainant's complaint.
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that she was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing his decision
without a hearing. Complainant points out the following facts, which
she states, require a hearing. Complainant states that the Agency
failed to produce sufficient evidence that permitting Complainant to
work from her home as an accommodation for her disability would create
an undue hardship for the Agency. Complainant states that the Agency
has not produced any written policy or other documentation to show that
Complainant is prohibited from working or accessing matters that contain
PII, in any of several manners that Complainant has described to ensure
the security of PII.1 Further, Complainant has presented evidence that
she asserts shows that other employees are permitted to work from home
whose work contain PII. Appellant's Brief In Support Of Appeal at 4.
Complainant requests that the Commission reverse the Agency's Final
Action and remand her complaint for a hearing.
ANALYSIS AND FINDINGS
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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding a
hearing unless she ensures that the party opposing the ruling is given:
(1) ample notice of the proposal to issue a decision without a hearing;
(2) a comprehensive statement of the allegedly undisputed material facts;
(3) the opportunity to respond to such a statement; and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment "where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition." Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to
a motion for a decision without a hearing).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a Complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
A Federal agency must "make reasonable accommodation for the known
physical or mental limitations" of a qualified employee unless the agency
can demonstrate that the accommodation would impose an undue hardship
on the operation of its program. 29 C.F.R. � 1630.9(a). Reasonable
accommodation may include making facilities accessible, job restructuring,
modified work schedules, and other similar actions. Spence v. Nuclear
Regulatory Commission, (EEOC Appeal No. 0120041082 (August 2, 2007),
req. for reconsideration denied, EEOC Request No. 0520070907 (The
Agency violated the Rehabilitation Act when it denied employee use of
the Health Unit for rest without asserting that doing so would create an
undue hardship for the agency); Hupka v. Dep't of Defense, EEOC Appeal
No. 02960003 (August 13, 1997) (The Agency violated the Rehabilitation
Act when it refused to allow a Complainant with a disability that was
exacerbated by his long commute to work at home or at a local alternative
work site, but did not contend that doing so would be an undue hardship
and did not offer alternative reasonable accommodation).
In the instant case, we find that the AJ properly issued his decision
without a hearing. We find the material facts are not in dispute and that
the AJ properly drew all reasonable inferences in Complainant's favor.
The AJ assumed, for purposes of his decision, that Complainant's
impairments rendered her disabled under the Rehabilitation Act.2 We
find, as did the AJ, the undisputed evidence shows that the Agency
and Complainant engaged in an exchange of proposals and the trial of
modifications to Complainant's work and work environment, in an effort to
accommodate Complainant's disability. Neither party disputes that the
Agency provided Complainant with many of her suggested modifications
and that Complainant was able to perform the essential functions of
her position with the modifications the Agency provided, namely, an
enclosed workspace. We note that Complainant continued to propose
solutions to predictable situations such as when employees would bring
Complainant's mail to her, and also allowed Complainant to use a secured,
particular door that would further limit her exposure to irritants in
the workplace.
To show discrimination, Complainant must show that the accommodation
the agency provided to her was ineffective. We find that on appeal,
as she did previously before the AJ, complainant argues that allowing her
to work from her home on a permanent basis would be a better accommodation
where she could virtually eliminate the chance that she would be exposed
to chemical irritants or perfume. Complainant further argues that the
agency did not provide enough of a reason for denying her this request.
We find, as the AJ did, that Complainant is entitled to an effective
accommodation, not necessarily the accommodation of her choice or even
the best available accommodation. We consider, as Complainant argues
that from time to time in her enclosed office, complainant may still
encounter the occasional irritant from contact with others who occupy
the workplace or during her daily commute (visitors, vendors, or other
transit passengers wearing strong perfume, for instance). Nevertheless,
we find the Agency permitted complainant to use sick leave on those
occasions where her symptoms became intolerable. We find that the use
of leave (including leave without pay, should Complainant's leave balance
become exhausted), is another form of accommodation. Complainant also
acknowledges that she has been approved to participate in the Agency's
Telework program on an 'as needed' basis. Complainant's responses to
Mandatory Interrogatories at 22.
We do not find that the Agency was required to show that Complainant's
requests to be able to work from home were an undue hardship, as
complainant insists. We find it is enough that after participating in
the interactive process, Complainant was provided with an effective
accommodation that allowed her to perform the essential functions of
her position. While it is in the nature of some disabilities to change
over time, we find that Complainant's performance evaluations and history
of sick leave use indicate that for now, the accommodation provided by
the agency is effective.
Therefore, while Complainant was not provided her choice of accommodation,
we find no dispute in the material facts that show the accommodation
offered by the agency was effective. See 29 C.F.R. � 1630.9; Polen
v. Department of Defense, EEOC Appeal No. 01970984 (January 16, 2001)
(holding if more than one 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.").
Furthermore, we find no indication that the agency's refusal to allow
Complainant to participate on Flexiplace program was based on disability
discrimination or retaliation. The Commission finds that there were
similarly situated employees who were permitted to telework with PII.
CONCLUSION
We AFFIRM the agency's Final Action finding no discrimination
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
June 15, 2010
__________________
Date
1 Complainant suggested that she could work with specific documents
containing PII (social security numbers, for example) if the documents
were scanned and sent to her in portable document format (PDF) attached
to an electronic mail message, that would not be saved or printed from
her laptop computer at her home.
2 We do not decide in this decision whether Complainant is a disabled
individual under the Rehabilitation Act.
??
??
??
??
2
0120090193
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090193