Cathy M.,1 Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionApr 8, 20160120142468 (E.E.O.C. Apr. 8, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cathy M.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency. Appeal No. 0120142468 Hearing No. 531-2011-00158X Agency No. 7MIR10001L14 DECISION Complainant filed an appeal from the Agency’s May 20, 2014 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 Complainant worked as a Food Service Officer at its facility in Fort Meade, Maryland. She was responsible for reviewing the day-to-day operations of a restaurant located on the premises but operated by contractors. Hearing Transcript (HT) 20. On April 15, 2010, Complainant filed an EEO complaint in which she alleged that the Flight Chief, her immediate supervisor (S1) and the Force Support Squadron Commander, her second-line supervisor (S2) failed to timely process her request for a reasonable accommodation of her disabilities (insomnia, carpal tunnel syndrome). At the conclusion of the ensuing investigation, Complainant timely requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ held a 1This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120142468 2 hearing on April 25, 2012, and issued a decision on March 28, 2014. The Agency subsequently issued a final order in which it fully implemented the AJ’s findings and conclusion that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In finding in the Agency’s favor, the AJ had made a number of critical factual findings, which we summarize as follows: 1. Complainant’s essential duties as a Food Service Officer include overseeing the operations of the restaurant and to collect receipts from the cash register, which could not be performed through telework. HT 22, 204-05. 2. Complainant suffered from insomnia and carpal tunnel syndrome. HT 31-33, 39, 40, 42, 225-29. 3. Between February and November of 2007, Complainant was unofficially allowed to come to work early and leave early, a practice that S1 disallowed after November 2007. IR 169; HT 51-52, 68, 204-07, 269-72. 4. On February 16, 2009, Complainant requested that she be put on a maxiflex schedule and be allowed to telecommute two days a week as a reasonable accommodation, in support of which she submitted a letter from her doctor. Investigative Report (IR) 169; HT 68-69, 207-09, 326-27, 335-36. 5. On February 23, 2009, S1 asked for a clarification from Complainant’s doctor regarding the connection of carpal tunnel syndrome to the requested accommodations, whereupon on March 6, 2009, Complainant requested that S1 have no further contact with her doctor. IR 176, 185-86; HT 209-18, 221-22, 272, 346-47. 6. In a letter dated May 12, 2009, and received by Complainant sometime in June 2009, S1 requested that Complainant provide additional medical documentation from an appropriate health care professional concerning her doctor’s February 16th request for an accommodation as to functional disabilities related to carpal tunnel syndrome. IR 192-93; HT 149-50, 226-28, 230, 289-92, 335-36. 7. On November 16, 2009, Complainant provided to S2 a letter from her chiropractor detailing her medical condition, in response to which S2 requested additional information because he did not believe that the chiropractor was the appropriate medical expert to substantiate Complainant’s insomnia or carpal tunnel syndrome. IR 129-30, 170-75, 367; HT 154-56, 230-34, 336-338, 368-73. 8. In a Form 557 dated March 5, 2010, S2 noted that Complainant had provided additional medical documentation to the Office of Equal Opportunity that had been forwarded to him, and that a decision would be made on Complainant’s accommodation request once 0120142468 3 the documentation had been reviewed. IR 190-91; HT 235-42, 346-47; Hearing Exhibit 4. 9. In a memorandum addressed to Complainant and dated April 20, 2010, S2 indicated that he had approved a maxiflex schedule under which Complainant would be allowed to arrive at work by 5:00 am and leave as early as 3:00 pm, but that he denied her request for telework on the grounds that the essential functions of overseeing the restaurant’s operations and collecting receipts could not be done from home. IR 98-99, 194; HT 96-97, 287, 348-55; Hearing Exhibit 2. On appeal, Complainant argues that the AJ erred in his rulings concerning the details of the reasonable accommodation process at issue in the complaint. First, she argues that S1 and S2’s response to her request was untimely. Second, she argues that neither S1 nor S2 properly engaged in the interactive process. Third, she argues that S1 and S2 improperly denied her requests to purchase a heater and ergonomic equipment, and that S2 improperly denied her request for a modified work schedule.2 STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ 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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. ANALYSIS AND FINDINGS In making the factual findings described above, the AJ determined that S1 and S2 were highly credible witnesses and accorded their affidavit and hearing testimony great weight. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, Section VI, Subsection B. (August 5, 2015). The Agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on 2 Complainant also alleged harassment and discriminatory reassignment in connection with other incidents raised in the complaint. The Agency adopted the AJ’s decision finding no discrimination on these claims. On appeal, Complainant does not challenge the AJ’s ruling. 0120142468 4 Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). A qualified individual with a disability is an “individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Here there is no question that Complainant is a qualified individual with a disability and that in April of 2010, the Agency did provide her with an accommodation. All that remains to be determined is whether S1 and S2’s efforts to accommodate Complainant’s disability were reasonable. We will address the timeliness question first. Although our regulations are silent on time frames, the Commission’s policy guidance on reasonable accommodation specifies that time limits for processing requests for and providing reasonable accommodation should be as short as possible. Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation, EEOC Notice No. 915.003, Section C (October 20, 2000). While Complainant appears to have initiated her request for reasonable accommodation in February 2009, it was not granted until April 20, 2010. Both S1 and S2 testified without contradiction that during that year-long-plus time frame, they made several requests for additional medical information, first from her physician in February and then from Complainant herself in June. They also testified that the Chiropractor’s response in November was not adequate because the Chiropractor was not medically qualified to issue an opinion on her insomnia and carpal tunnel syndrome. The testimony of S1 and S2 is supported by memoranda documenting their attempts to obtain the necessary medical information and consequently, was credited by the AJ. Ultimately, we find, as did the AJ, that while there was a year-long delay in providing Complainant with her reasonable accommodation, that delay is attributable entirely to Complainant’s failure to provide S1 and S2 with the medical documentation they needed to make the determination until March 2010. IR 124-25, 129-30. We now turn to Complainant’s contention that S1 and S2 failed to properly engage in the interactive process. This contention is undermined by the affidavit testimony of the Human Resources Specialist who received inquiries from S1 regarding the propriety of Complainant’s medical documentation. When asked by the investigator whether management followed the Agency’s reasonable accommodation policy, she replied that they did. IR 135. She confirmed that Complainant did not initially provide the documentation necessary to support her request for an accommodation. HR 135-36; HT 227. S2 testified that Complainant, “had some pretty strong concerns about her medical records being released to anybody, including her supervisor.” HT 346-47. As we previously noted, the AJ credited S2’s hearing testimony. From that testimony, we find that the effectiveness of the interactive process had been undermined by Complainant’s apparent lack of cooperation in providing the medical documentation that S1 and S2 needed to process her reasonable accommodation request. Third, we must assess the reasonableness of S1’s and S2’s efforts to provide Complainant with a reasonable accommodation. An accommodation is “reasonable” if it appears to be “feasible” 0120142468 5 or “plausible” and is effective in meeting the needs of the individual. Enforcement Guidance on Reasonable Accommodation and Undue Hardship at 4-5; Gerald D. v. Department of Veterans Affairs, EEOC Appeal No. 0120130776 (November 10, 2015). Here, S2 testified that he could not grant Complainant’s request to telework because a number of the essential functions of her position as a Food Service Officer, in particular overseeing restaurant operations, could only be done at the facility. He did, however, allow her to work a flexible schedule under which she could arrive at the office and leave at the earliest possible time without compromising her attendance during core hours. While Complainant is entitled to an effective accommodation, she is not entitled to the accommodation of her choice. Lynette B. v. Department of Justice – Bureau of Alcohol, Tobacco, Firearms & Explosives, EEOC Appeal No. 0720140010 (December 3, 2015). We therefore agree with the AJ that the accommodation granted to Complainant by S2 was reasonable. As to Complainant’s contention that the Agency failed to provide her with a heater or ergonomic equipment, S2 testified that he had arranged for Complainant to have a heater and several ergonomic devices, including a larger keyboard, writing devices, and a chair that would serve as an interim accommodation until funds could be appropriated for a new ergonomic chair. S2 also testified that Complainant did not accept his offer regarding the ergonomic chair. HT 327-29, 331-33, 335, 341-45. Once again, the AJ credited S2’s testimony. Beyond her own assertions, Complainant has not submitted any sworn statements from other witnesses or documents that contradict the explanations provided by S1 and S2, or which call their veracity into question. We therefore find no basis upon which to disturb the AJ’s credibility determination regarding the hearing testimony of S1 and S2. Ultimately, we agree that the AJ’s findings and conclusions in favor of the Agency are supported by the substantial evidence of record, and that Complainant has not sustain her burden of proof regarding her reasonable accommodation claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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: 0120142468 6 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), at Chap. 9 § VII.B (Aug. 5, 2015). 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court 0120142468 7 has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 8, 2016 Date Copy with citationCopy as parenthetical citation