Agency.

Equal Employment Opportunity CommissionNov 16, 2007
0220060006 (E.E.O.C. Nov. 16, 2007)

0220060006

11-16-2007

Agency.


Lisa Mullen,

Grievant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0220060006

Agency No. 0AR3751

DECISION

On January 23, 2006, grievant submitted a letter to the Equal Employment

Opportunity Commission (EEOC or Commission) seeking to reinstate her

complaint of discrimination. Grievant's counsel alleged that, while

the agency represented that it forwarded certain information to him

on October 20, 2006, he had no record of receiving the information.

Grievant's counsel stated that he was in receipt of two (2) letters:

(1) a January 3, 2006 "compliance report" letter from the agency to the

EEOC, stating that the status of the case was awaiting EEOC's Office

of Federal Operations (OFO) to render a decision; and (2) a January 9,

2006 letter from the EEOC's OFO Compliance and Control Division, stating

that "compliance monitoring activity has ceased on the above-referenced

Compliance Tracking number for the reason(s) cited below: The agency

has provided us documentation sufficient to demonstrate that it has

taken the corrective action(s) ordered in the Commission's decision.

This action will not be construed as an adjudication of the merits of

any claim(s) arising out of the corrective action." Grievant's counsel

stated that at no time had the agency complied with OFO's explicit order

dated September 15, 2006 in which it directed the agency to provide

the grievant notice of her right to appeal the decision of the Federal

Labor Relations Authority (FLRA) within 30 days of grievant's receipt.

Counsel alleges that he is not in possession of a right to appeal notice,

and construed the agency's letter dated January 3, 2006 to trigger

grievant's timely request for reinstatement of her appeal.

The procedural history of the case is as follows: grievant timely

initiated an appeal from a decision of the FLRA concerning her grievance

filed against the agency on January 14, 2002. In her grievance, grievant

alleged that the agency discriminated against her in violation of Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., based on disability (injury to right foot)

when it failed to provide her with requested reasonable accommodations.

The record indicates that in 1989 grievant injured her foot on the job.

The injury left grievant permanently disabled with a substantial

limitation in her ability to walk. On April 1, 1993, grievant signed a

Settlement Agreement (SA1) with the agency to resolve an EEO complaint.

SA1 required the agency: (1) to allow grievant to spend the first and

last forty minutes of her work day in sedentary activities; (2) to make

a good faith effort to locate a parking space close to the facility at

the agency's expense; and (3) and allow her to schedule her work day

so she could be productive during the forty minute sedentary periods.

On February 21, 1995, grievant signed a second Settlement Agreement (SA2),

which stated that the agency would allow grievant twice the amount of

time for field work assignments as it would allow an employee without

any limitation in his or her ability to drive or walk.

The record next indicates that in January of 2002, the agency's union

filed a grievance on behalf of grievant, stating that the agency

violated the Rehabilitation Act when it denied her access to: (1) a

disability parking space near the rear of the relevant facility; and

(2) the facility's automatic door. The grievance was processed to the

Federal Mediation and Conciliation Service Labor Arbitration Tribunal.

The Arbitrator held a hearing on June 10, 2003 in Huntington, West

Virginia, and concluded that the agency violated the Americans with

Disabilities Act, perpetuated a hostile work environment and violated the

terms of SA1 when it did not provide reasonable accommodations for her

impairment. The Arbitrator directed the agency to assign a parking space

to grievant at the facility and allow her access to the automatic door,

as well as granting her compensatory damages in the form of providing

the parking space at no charge to grievant. We note that in making his

decision, the Arbitrator relied on the following documents which were in

the hearing record: (1) SA1 (Exhibit A-1); (2) SA2; (3) the response by

the agency's Manager of Individuals with Disabilities Program (Manager)

to grievant's e-mail request for a parking space (Exhibit A-9); (4)

grievant's medical documentation from 1992 (Exhibit A-8); (5) a memorandum

from the Manager to the Chief of the agency's Logistics Management Office

(Chief), outlining his analysis and opinion regarding various issues

raised by grievant's request (Exhibit A-7); and (6) documents from the

Manager dated September 19, 2001 denying grievant's request for access

to the automatic door and a document from the agency Corps of Engineers

Commander, also denying grievant's request (Exhibit A-6).

The agency and the agency's union then filed exceptions to the

Arbitrator's decision to the FLRA. The FLRA found that the Arbitrator's

determination that the agency violated the Americans with Disabilities Act

(and by extension, the Rehabilitation Act) was contrary to law. As such,

it set aside the Arbitrator's finding that as the agency was required to

provide grievant with a reasonable accommodation for her disability, the

agency would be required to provide her with her requested parking space.

The union's exception to the Arbitrator's failure to award non-pecuniary

or pecuniary compensatory damages and attorney's fees was dismissed by

the FLRA. U.S. Army Corps of Engineers v. Mullen, Case No. 59 FLRA 142

(March 31, 2004).

Grievant then appealed the FLRA's decision to the Commission.1 In

response to a request by OFO to the agency for a transcript of the hearing

before the arbitrator as well as other documents used by the arbitrator

and FLRA in making its decisions, an agency representative attested

that no transcript of the arbitration hearing was taken. A copy of the

official agency file was also sent to OFO; however, that file contains

only copies of SA1 and SA2, but does not contain documents from the

hearing record that the Arbitrator relied on in making his decision,

specifically Exhibits A-6 through A-9. These documents were deemed

crucial as they detail grievant's requests for accommodation and the

agency's response denying those requests.

The Commission found that the record contained insufficient information to

permit a determination as to whether the agency unlawfully discriminated

against grievant on the basis of disability. See Foster v. Army,

EEOC Appeal No. 02970017 (September 3, 1999); Ricks v. Department of

Health and Human Services, EEOC Appeal No. 02960014 (June 16, 1997).

Because of the lack of relevant record evidence and our inability

to render a determination on the merits of grievant's allegations

of discrimination, we remanded the grievance to the agency for the

production of documents relevant to grievant's request for a reasonable

accommodation and the agency's denial(s) of that request. See Batchelor

v. Department of the Air Force, EEOC Request No. 05930671 (December

23, 1993); Kerr v. Department of the Army, EEOC Request No. 05930012

(July 9, 1993). We found that evidence such as the Arbitrator's hearing

transcript (which the agency indicated does not exist), as well as other

information which would buttress or rebut the agency's stated reasons,

such as Exhibits A-6 through A-9 of the Arbitrator's hearing record, and

other correspondence between grievant and agency management regarding

her reasonable accommodation request, were not included in the record.

See Tyndall v. Department of Veterans Affairs, EEOC Appeal No. 01944524

(September 20, 1995). We therefore remanded the matter to the agency

for production of all relevant documents which were relied upon by the

Arbitrator and the FLRA in rendering their decisions in the instant

grievance. See Mullen v. Dept. of the Army, EEOC Appeal 02A40008

(Sept. 15, 2005).

On November 2, 2005, the agency sent the requested documentation to

the Commission. On January 23, 2006, grievant's counsel requested

reinstatement of her appeal. In response to the request for reinstatement

of the appeal, the agency responded, requesting the dismissal of

grievant's appeal. The agency alleged that while grievant's counsel

stated he did not receive copies of the documentation on the compliance

of her remanded complaint, documentation was attached from the agency's

EEO office which indicates what was sent to grievant's counsel and

informed them of their right to appeal to EEOC.1 The agency attached

a letter dated October 20, 2005, providing grievant and her counsel

with appeal rights to EEOC as set forth in the Commission's order and

providing them with copies of documentation submitted to the agency's

EEO office. The agency also alleged that tracking by Federal Express

establishes when grievant and her counsel received the documentation,

despite the allegation by grievant's counsel that he did not receive

the items ordered produced by the Commission's decision.

Pursuant to 29 C.F.R. � 1614.401(d), "[a] grievant may appeal the

final decision of the agency, the arbitrator or the Federal Labor

Relations Authority (FLRA) on the grievance when an issue of employment

discrimination was raised in a negotiated grievance procedure that

permits such issues to be raised."

Initially, we decline the agency's request to dismiss the grievant's

appeal as being untimely. When we issued our initial decision in

September of 2005 and ordered the agency to submit relevant documentation,

grievant's case was implicitly held in abeyance until the requested

documentation was received by the Commission. We note that our prior

decision did not vacate the final agency decision and order a new

decision with appeal rights to grievant. As such, the appeal rights

which the agency provided to grievant in its letter dated October 20, 2005

were unnecessary. As the case was held in abeyance following our prior

decision, the grievant's appeal does not need to be reinstated. Thus the

fact that grievant or her counsel did not respond to the appeal rights

provided by the agency does not require that the appeal be dismissed.

Addressing the merits of grievant's complaint of disability

discrimination, we review the FLRA's decision dated March 31, 2004 which

found the Arbitrator's findings contrary to the Rehabilitation Act.

We note that the record indicates the grievant was injured on duty and

suffered a limitation on her ability to walk. The Arbitrator found that

grievant was an individual with a disability and ordered the agency to

assign her a disability parking space near the rear of the facility at

no cost to grievant and to eliminate the hostility towards grievant.

The union's exception that the Arbitrator did not award compensatory

damages was dismissed; the record did not provide that evidence such

as out of pocket medical expenses and damages for anguish and mental

suffering were presented to the Arbitrator.

The Commission finds, assuming arguendo, that grievant is an individual

with a disability under the Rehabilitation Act, the FLRA's decision

properly found that the Arbitrator failed to conduct a proper reasonable

accommodation analysis. In so finding, the Commission concurs with the

FLRA's finding that it was not unreasonable for the agency to request

an update of grievant's medical documentation as necessary to support

her need for the new or additional accommodation of a parking place at

the rear of her workplace and use of the facility's automatic door in

December of 2000. The record indicates that grievant provided medical

documentation dating from 1992 regarding the nature and extent of her

foot injury, and pursuant to negotiated settlement agreements, the agency

assisted grievant in finding a parking place close to the building in

which she worked, for which she was financially responsible. In response

to grievant's request in 2000 for a parking place at the rear of the

workplace and the use of the automatic door, we concur with the FLRA's

finding that grievant failed to provide updated medical information to

determine whether her condition changed. The record indicates that when

grievant failed to provide more recent information on her condition, the

agency was unable to assess whether grievant's condition was sufficient

to warrant the accommodations she requested. Further, we concur with

the FLRA's finding that the breakdown in the interactive process over

the accommodation request resulted from grievant's failure to provide

medical information dated more recently than 1992.

Contrary to the Arbitrator's findings, we find that the agency provided

grievant a reasonable accommodation starting in 1992. The grievant then

sought the accommodation of a different parking place, without indicating

whether the conditions of her disability had changed. Without notice of

any change in grievant's updated medical condition, the agency was not

required to alter the existing reasonable accommodation it provided.

See EEOC Enforcement Guidance: Reasonable Accommodation and Undue

Hardship under the Americans with Disabilities Act, EEOC Order No. 915.002

(October 17, 2002). We note that following a request for a reasonable

accommodation, an employer is permitted to seek documentation where it is

necessary to determine that the individual has a covered disability for

which the requested accommodation is necessary. See 29 C.F.R. � 1630.14;

Ross v. Dept. of the Treasury, EEOC Appeal No. 01982798 (August 2, 2001).

Also, the agency need not adopt the grievant's choice of accommodation,

where its own choice is effective. See 29 C.F.R. � 1630.9. We find

that grievant provided no updated medical documentation detailing any

change in her condition at the request of the agency, nor did she proffer

evidence which demonstrated that the accommodation(s) which the agency

were providing to her were ineffective.

For reasons stated herein, the Commission AFFIRMS the decision of the

FLRA reversing the portion of the Arbitrator's decision finding the

agency violated the Rehabilitation Act.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the grievant 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).

GRIEVANT'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

___11-16-07_______________

Date

1 EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant

may appeal to the Commission from a final decision of the agency,

the arbitrator, or the Federal Labor Relations Authority (FLRA)

on a grievance when an issue of employment discrimination was

raised in a negotiated grievance procedure that permits such

issues to be raised.

1 We note that while the e-mail message from the agency to the Office of

Federal Operations states that grievant and her counsel were provided

with "appeal rights to FLRA," the actual appeal rights provided in the

letter from the agency to grievant's counsel dated October 20, 2005 were

to the Commission's Office of Federal Operations.

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0220060006

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0220060006