0120063523
01-07-2009
Clarence P. Layman, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Clarence P. Layman,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200635231
Agency No. 2001-0573-2003103097
DECISION
On May 16, 2006, complainant filed an appeal from the agency's April
20, 2006 final action concerning his 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 action.
At the time of events giving rise to this complaint, complainant worked
as an Assistant Chief, Acquisition and Material Management Service,
at the agency's Gainesville, Florida Medical Center.
On August 11, 2003, complainant filed an EEO complaint alleging
that he was discriminated against on the bases of disability (severe
osteoarthritis in both knees) and in reprisal for prior protected EEO
activity under Section 501 of the Rehabilitation Act of 1973 when his
request for a disabled parking space was denied on June 3, 2003.
The record reflects that on February 7, 2003, complainant submitted
a request for reasonable accommodation for his condition of severe
osteoarthritis in both knees. Complainant requested from the Medical
Center Associate Director: (1) a change in his tour of duty from 8:00
a.m. - 4:30 p.m. to 7:00 a.m. - 3:30 p.m.; (2) additional handicapped
parking in the area of Trailer T-6; and (3) authorization to park in
the East Parking Lot or any other accommodation as may be appropriate.
By memorandum dated February 26, 2003, the Medical Center Associate
Director requested that complainant submit additional medical information
to support his reasonable accommodation request. Complainant claimed that
he addressed the request by answering as many questions as possible and he
stated that the agency should accept medical information provided in the
service-connected disability rating decision. Complainant was provided
with a temporary tour of duty change of 7:30 a.m. to 4:00 p.m. until his
reasonable accommodation request was processed. Complainant informed the
agency that this adjustment in his normal duty hours was an acceptable
accommodation.
On March 28, 2003, the Chief of Acquisition and Material Management
Service requested that complainant provide physician's statements,
diagnosis and prognosis for his condition dated within the last six
months, and informed complainant that his tour of duty would return
to 8:00 a.m. to 4:30 p.m. if he did not submit the requested medical
information. On April 3, 2003, complainant amended his reasonable
accommodation request to state that it should apply for one year at
which time he would review and reevaluate his request. On April 15,
2003, the agency denied complainant's request to extend his temporary
change of duty to one year. The Chief reiterated to complainant that he
must submit the previously requested medical information and he attached
a copy of complainant's position description and instructed complainant
to have his doctor review it and determine whether or not he is able to
perform the duties of his position. By memorandum dated April 16, 2003,
complainant informed the Chief that he was going to file an EEO complaint
alleging harassment. Complainant subsequently sent the Chief another
memorandum stating that he felt the requirement to have his physician
review his position description was unwarranted and outside the scope of
his request for reasonable accommodation. On June 3, 2003, the Chief
notified complainant that he was being returned to his regular tour of
duty from 8:00 a.m. to 4:30 p.m. because he failed to submit additional
documentation by May 31, 2003, despite being asked to do so. On June
10, 2003, complainant provided additional medical documentation from
his physician. By memorandum dated June 26, 2003, the Chief informed
complainant that the agency physician concluded that complainant has
a physical disability that substantially limits his ability to walk.
Complainant was returned to a 7:30 a.m. to 4:00 p.m. tour of duty.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing but subsequently withdrew his request.
Consequently, the agency issued a final action pursuant to 29 C.F.R. �
1614.110 wherein it determined that complainant proved that he was
subjected to discrimination on the basis of his disability when his
request for reasonable accommodation was denied. The agency noted
that complainant had requested a change in his tour of duty from 7:00
a.m. to 3:30 p.m. The record established that in order for complainant
to ensure that he obtains a handicapped parking space, he must be in
the parking lot before 7:00 a.m. The agency reasoned that although
it provided complainant with a temporary 7:30 a.m. to 4:00 p.m. tour
of duty, and that complainant agreed in order to resolve the issue,
such accommodation was ineffective. The agency determined that this
accommodation would not guarantee complainant a handicapped parking space
on a daily basis. Accordingly, the agency determined that it failed to
provide reasonable accommodation for complainant as the accommodation
provided was not effective.
The agency however, determined that complainant was not entitled to
compensatory damages as it had made a good faith effort to accommodate
complainant's disability, even though those efforts fell short of what
is required by law. In support of its position that it made a good
faith effort, the agency noted that it provided an accommodation for
complainant that complainant stated at one time was acceptable.
The agency further determined that complainant failed to establish that
he was discriminated against on the basis of reprisal. The agency noted
that additional medical documentation was requested from complainant
because information submitted by complainant was insufficient to make a
judgment as to whether he had a disability under the Rehabilitation Act.
The agency further stated that the reason complainant's reasonable
accommodation request was not implemented in June 2003, was due to
complainant's refusal to provide the requested additional medical
documentation. The agency determined that management's request for
additional medical documentation was justified as well as the denial
of complainant's reasonable accommodation request when complainant
failed to provide the requested medical information. With regard to
complainant's claim that he was subjected to disparate treatment based on
his protected EEO activity, the agency rejected this contention noting
that the comparison employee cited by complainant never requested a
reasonable accommodation, therefore her circumstances were different
than that of complainant.
In terms of relief, the agency provided that complainant receive an
immediate reasonable accommodation of his disability. The agency
further stated that it would commit to complainant in writing that it
would cease from engaging in disability discrimination, not engage in
similar unlawful employment practices, provide complainant a workplace
free from hostility, offensive conduct or abuse, and that no reprisal
would be taken against complainant.
On appeal, complainant contends that the agency was unreasonable in its
request for additional medical documentation. Complainant states that
his supervisor had personal knowledge of his disability as the supervisor
had accompanied him from the parking lot on a number of occasions and
that he submitted a disability rating decision which contained specific
medical information. According to complainant, he submitted evidence
that Florida regarded him as disabled as it had provided him with a
handicapped parking permit. With regard to his claim of reprisal,
complainant contends that the agency ignored his request for a 60-day
extension of the temporary change in duty in order to comply with the
request for the documentation. Complainant states that he needed time
to schedule an appointment with his physician in Tampa, 120 miles away.
Complainant maintains that he did not refuse to provide the requested
documentation, but that he lacked the ability to do so on June 3, 2003.
As for his claim for compensatory damages, complainant maintains that
the agency's action reflected a lack of good faith. Complainant states
that the agency's insistence on additional medical documentation did
not reflect good faith given that it possessed medical and non-medical
evidence, including the personal knowledge of complainant's supervisor.
Complainant further notes the agency's failure to respond to his request
for a temporary extension of time to provide the requested documentation.
In response, the agency asserts with regard to complainant's request
for compensatory damages that it acted in good faith in its efforts
to provide complainant with a reasonable accommodation. The agency
notes that despite not having the required medical documentation from
complainant, it temporarily provided complainant with an accommodation
that was initially deemed acceptable by him. The agency maintains that
it was entitled to know whether an employee requesting accommodation
under the Rehabilitation Act actually had a disability covered by the
Rehabilitation Act.
Initially, we note that there is no dispute between the parties
that complainant is an individual with a disability and that he was
discriminated against on the basis of his disability when he was denied a
reasonable accommodation. Therefore, the remaining matters at issue are
whether complainant was discriminated against on the basis of reprisal and
whether complainant is entitled to compensatory damages. With regard to
the claim of reprisal, the agency stated that the information submitted
by complainant was insufficient for it to make a judgment as to whether
complainant had a disability under the Rehabilitation Act. According to
the agency, complainant's request for reasonable accommodation was not
implemented in June 2003, due to his refusal to provide the requested
additional medical documentation. We find that complainant has not
shown that the agency was motivated by retaliation when it failed to
reasonably accommodate complainant.
Complainant stated that an employee with a back problem who did not submit
medical documentation received approval of her request for a 7:00 a.m. -
3:30 p.m. tour of duty so that she could receive rehabilitation treatment
in the afternoon. The record indicates however that complainant and
this individual were not similarly situated because this comparative
employee, unlike complainant, requested a change of tour of duty for a
specific period of time to attend physical therapy.
Under Section 102 of the Civil Rights Act of 1991 (CRA), compensatory
damages may be awarded for pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, and loss of enjoyment of life. However,
Section 102 of the CRA also provides that an agency is not liable
for compensatory damages in cases of disability discrimination where
it demonstrates that it made a good faith effort to accommodate the
complainant's disability.
A good faith effort can be demonstrated by proof that the agency,
in consultation with the disabled individual, attempted to identify
and make a reasonable accommodation. See Schauer v. Social Security
Administration, EEOC Appeal No. 01970854 (July 13, 2001). In the case at
hand, the agency improperly denied complainant's request for a change in
his tour of duty to 7:00 a.m. - 3:30 p.m. as an accommodation. However,
the record reveals that the agency did adjust complainant's tour of duty
from 8:00 a.m. - 4:30 p.m. to 7:30 a.m. - 4:00 p.m. The agency made
this adjustment after complainant initially requested an accommodation
and after complainant submitted the requested medical documentation.
Therefore, in this case, we find that the agency's efforts, although
not sufficient to afford a reasonable accommodation, reflected a degree
of responsiveness and were adequate to show a good faith effort to
accommodate complainant. Consequently, we find complainant is not
entitled to receive compensatory damages.
Accordingly, the agency's notice of final action is AFFIRMED and the
agency shall comply with the Order herein which adds the remedies of
training and the consideration of discipline of responsible agency
officials.
ORDER
The agency is ordered to take the following actions:
1. Within 30 days of the date this decision becomes final, the agency
shall provide complainant with a tour of duty of 7:00 a.m. - 3:30 p.m.
2. Within 180 days of the date this decision becomes final, the agency
shall train all agency employees at the agency's Medical Center in
Gainesville, Florida responsible for the denial of a reasonable
accommodation to complainant. The training shall concern the
Rehabilitation Act with an emphasis on reasonable accommodation and the
agency's duties to ensure that similar violations do not occur.
3. Within 60 days of the date this decision becomes final, the agency
shall consider taking disciplinary action against the individuals, still
working for the agency, who were responsible for denying complainant a
reasonable accommodation. If the agency decides to take disciplinary
action, it shall identify in a compliance report the action taken.
If the agency decides not to take disciplinary action, it shall set
forth in its compliance report the reason(s) or its decision not to
impose discipline.
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 documentation indication that the
corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its VA Medical Center in Gainesville,
Florida 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 (K0408)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
January 7, 2009
__________________
Date
1 This case has been redesignated with the above-referenced appeal
number.
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0120063523
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063523