0120142114
09-15-2016
Dania S.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dania S.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120142114
Agency No. NY-13-0356-SSA
DECISION
On May 22, 2014, Complainant filed a timely appeal from a final Agency decision (FAD) dated May 9, 2014, concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative, GS-11, at the Agency's Boro Hall District Office in Brooklyn, New York.
On August 1, 2013, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against her based on her race (Hispanic), disability (chronic asthma, vertigo, seizure disorder, legs), and age (41 & 42) when:
1. on January 29, 2013, her request for a hardship transfer to an office near her home was denied; and
2. on April 19, 2013, her reasonable accommodation request for a transfer to an office near her home was denied.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). It found no discrimination.
By way of background, in May 2012, Complainant filed a request for a hardship transfer to relocate near her 21 year old son in Connecticut. She explained that after he was mugged and a victim of an armed robbery, she sent him to Connecticut in 2009 to live with close family friends since the New York neighborhood where they lived became dangerous and she feared for his life. She wrote that she did not request a reassignment earlier because she was the caretaker for her grandmother who died in August 2010. Complainant wrote that her son worked part time, was unable to support himself, was a financial burden to their family friends, and due to his financial difficulties she started her move to Connecticut. Report of Investigation (ROI), Exh. 11. Connecticut is in the Boston Region.
In accordance with procedures, Complainant's hardship transfer request was submitted to the Agency's Hardship Coordinator for the New York Region, who worked in a different office than Complainant, and handled hardship transfer requests outside her region. By letter dated June 25, 2012, the Hardship Coordinator denied the request. She wrote therein that a hardship transfer is defined as a set of circumstances that requires a permanent reassignment, is beyond the employee's control, and is so severe that it jeopardizes the employee's or her family's health or financial security, and the request did not meet this standard. ROI, Exh. 13.
Moving on to the active matters before us, on November 5, 2012, Complainant made a second hardship request, which she termed as a request to reconsider her prior request. Complainant again raised her son, and wrote she moved to Connecticut on September 1, 2012, to prevent him from losing his apartment. She wrote that her commute was now three hours each way, submitted documentation of the large rail road expense, and wrote this caused extreme financial hardship.
Complainant wrote above that she was diagnosed with tendonitis of her Achilles tendon, that she was referred for physical therapy, wore a CAM walker boot to prevent further injury, was diagnosed with partial epilepsy which have caused seizures, and had vertigo, and has encountered various medical problems which make her commute more complicated. She indicated that she visited the emergency room in the past week with a dizzy spell, and wrote that the commute posed a medical risk. She submitted medical documentation showing that in 2001 she visited a doctor complaining of recurrent vertigo and an episode of syncope (fainting), on an unknown date was treated for vertigo and prescribed medication for dizziness, was treated for vertigo in June 2009 for which she missed work, had a diagnosis of vertigo and dizziness in August 2009, and had imagining in September 2012, of her Achilles tendon which indicated mild tendinosis of the Achilles tendon with accompanying mild to moderate Achilles peritendinitis, mild Haglund deformity and developing enthesopathy at the Achilles attachment, and mild retrocalcaneal bursitis. ROI, Exh. 12.
By letter dated January 29, 2013, the Hardship Coordinator denied Complainant's second request for the same reason she denied the first. In her investigative affidavit, the Hardship Coordinator elaborated that to grant a hardship transfer all three criteria in the denial letters had to be met and they were not because Complainant's circumstances were not beyond her control - by moving to a different geographic location she created her set of circumstances. The Hardship Coordinator wrote that she followed the rules (brief general standards) set forth in the Hardship Reassignment Memorandum of Understanding, and circumstances likely to be approved include marriage to an individual who lives and works elsewhere, a spouse's military transfer, and elder care. ROI, Exhs. 7 & 8.
The Hardship Coordinator stated that from January 2011 through January 2013, approximately 40 to 45 hardship transfer requests for transfers outside the New York Region were granted, and 24 to 29 were denied.
On December 5, 2012, Complainant submitted a request for reasonable accommodation to her then supervisor (S1) for a transfer near her home in Waterbury, Connecticut - she suggested the Waterbury, Torrington, and Bristol offices, all within 30 minutes from her home. She indicated that she needed accommodation for her disabling conditions of chronic vertigo, seizures, difficulty walking, chronic Achilles tendonitis, leg pain, and varicose leg veins. She wrote that she moved to Connecticut in September 2012 due to family obligations, and now had a three hour commute each way - a 45 minute drive to the commuter rail station, 1.5 - 2 hours on the rail, and 30 minutes on the subway where at times she is forced to stand, and must also walk up and down many staircases which has aggravated her injury. Complainant wrote that she has encountered complications with her illnesses related to the commute, wears a Cam Walker which at times alleviates her pain but generally has very limited mobility. She added that she was treated as recently as October 2012 for her chronic vertigo. ROI, Exh. 15.
On December 5, 2012, S1 recommended that Complainant's request be approved. Thereafter, the request was forwarded to the Agency's Reasonable Accommodation Coordinator, in Human Resources, for input. Complainant added additional medical information around January 23, 2013.
Complainant provided the same medical documentation she submitted with her second hardship transfer request. She submitted additional medical documentation, as follows:
A medical report by a physician indicated that Complainant visited him on July 19, 2012, complaining of leg pain with moderate severity in both legs, right worse than left, with radiating pain to the right leg and cramping, with symptoms of a year. The report showed Complainant was 5 feet tall and weighed 265 pounds. In reviewing symptoms, the physician indicated that Complainant was negative for vertigo and weakness, and positive both for comfort and ability to conduct usual activities.2 His examination showed full muscle strength, normal bones and joints and coordination. In September 4, 2012, notes, Podiatrist 1 or someone from his practice wrote that Complainant was complaining of right post heel pain, moved the past weekend and aggravated her foot, there was pain upon palpitation of the heel radiating up the Achilles, and she had a right post heel spur. He noted Complainant was waiting for authorization for a CAM - presumably insurance authorization. On December 4, 2012,3 Podiatrist 2 wrote that Complainant was being treated for acute Achilles tendonitis secondary to overuse, which was exacerbated by increased weight bearing and ambulation. He opined that her daily commute was having a negative impact on her injury, and requested as accommodation a change in her workplace location to reduce her commute. Podiatrist 1 wrote on December 4, 2012, that he was treating Complainant for chronic Achilles tendonosis of the right foot, and immobilization was required for approximately two months along with physical therapy. He recommended minimal walking. On December 4, 2012, Podiatrist 2 referred Complainant for physical therapy two to three times weekly for her right Achilles Tendonitis. Paperwork showed she was scheduled for physical therapy appointments from December 11, 2012 through February 1, 2013, on a frequent basis. In addition, on December 4, 2012, Complainant's Doctor of Osteopathic Medicine (DO) wrote she had worsening chronic vertigo, and advised her to relocate her job closer to home.
The Reasonable Accommodation Coordinator forwarded the medical documentation to the Agency's Office of Medical Director for a medical opinion. After reviewing the above medical documentation, it determined that Complainant did not have a disability. ROI, Exh. 16. The Reasonable Accommodation Coordinator then passed along a summary of the medical opinion to Complainant's new supervisor (S2). ROI, Exh. 9. While the Reasonable Accommodation Coordinator wrote that the decision to deny was made by Complainant's supervisor, S2 wrote that he did not believe he ever saw Complainant's reasonable accommodation request, the denial was written and came from the "regional office," he never saw the medical information referred to therein, and he just signed off on the denial because he was the first line supervisor. The denial was dated April 19, 2013.
In finding Complainant did not have a disability in the denial letter, the Agency wrote that while Complainant's DO wrote on December 4, 2012, that she had chronic vertigo, it was unclear from his brief note whether and to what extent it limits any major life activities, and Complainant's physician wrote before that Complainant denied vertigo, weakness, and inability to conduct usual activities. Regarding Complainant's foot, the Agency wrote that while Podiatrist 1 termed the issue as chronic, Podiatrist 2 wrote it was an acute injury, recommended treatment with immobilization and minimal walking for two months which has passed and his documentation did not reveal a limitation beyond this period. Further, the Agency referred to Complainant's prior physician report documenting normal bones and joints. The Agency wrote that while Podiatrist 2 recommended a reduction in Complainant's commute time and that commuting had a negative impact on her injury, this was unclear and no time period was mentioned. The Agency also wrote therein that even if Complainant was eventually determined to have a disability, an employer is not required to accommodate an employee's choice of commuting method or where to live.
In finding no discrimination in its FAD, the agency assumed, solely for purposes of a prima facie analysis, that Complainant was an individual with a disability. Regarding issue 1, the Agency found that Complainant did not make out a prima facie case of discrimination because she did not show she was disparately treated. Assuming arguendo that Complainant made out a prima facie case of discrimination, the Agency found that management articulated a legitimate non-discriminatory reason for the hardship transfer request -Complainant's request did not meet the definition of hardship since by deciding to move to a different geographical location, she created her own set of circumstances. The Agency found that Complainant did not show that the Hardship Coordinator had any racial animus against her as alleged, and she failed to prove pretext.
Regarding issue 2, the Agency found under the disparate treatment theory that Complainant failed to prove discrimination - the Agency's Office of Medical Director determined that Complainant did not have a disability, and Complainant did not prove pretext.
Under the theory of reasonable accommodation for issue 2, the Agency found that Complainant failed to establish a nexus between her medical conditions and the accommodation she requests - a transfer to get a shorter commute. The Agency explained that Complainant chose to move to a location with a six hour round trip commute from the Boro Hall District Office, and commuting to and from her home is not a function of her job. The Agency cited court decisions for the proposition that a commute is not something an employer is required to reasonably accommodate. The Agency went on to find that even assuming arguendo that an employer is required to provide a shorter commute as a reasonable accommodation in appropriate circumstances, she failed to prove that an accommodation was required because of her medical conditions. It found that the medical evidence regarding vertigo was inconsistent, but even if it was chronic, it would only affect her ability to drive, and it was unclear why it was necessary for her to reduce her drive from 45 to 30 minutes, as requested. The Agency found that the medical evidence Complainant submitted only documented a few incidents of vertigo in 2005, 2009, and 2012. Regarding Complainant's Achilles tendonitis, the Agency reiterated the findings in its denial letter. The Agency also found that Complainant failed to show she needed a shorter commute - it reasoned that most of it was spent in her vehicle, standing was only required on a train or subway platform, and walking was only required to access the platforms.
The record reflects that after the Agency denied Complainant's reasonable accommodation request in April 2013, Complainant visited the emergency room and was diagnosed with enthesopathy of the knee and later in July 2013 with a meniscus tear, and by August 14, 2013, an orthopedic surgeon diagnosed her with left knee internal derangement, recommended that she be out of work from approximately July 26, 2013 to September [23], 2013, and that she work in Connecticut due to the inability to travel six hours daily. Complainant had left knee arthroscopy surgery around August 26, 2013, and thereafter was restricted to no excessive stair climbing. On October 23, 2013, her orthopedic surgeon recommended limited steps and commute of less than one hour for a minimum of six weeks. On November 17, 2013, Complainant was in a motor vehicle accident and sustained neck pain due to a sprain/strain, cervical radiculopathy, lower back pain due to sprain/strain, and bi-lateral knee pain.
On November 6, 2013, Complainant again requested a transfer to Connecticut, citing her "inability to walk," noting she uses a cane. ROI, Exh. 22, at 3. By December 2013, her request for a compassionate detail to the Boston Region while undergoing medical treatment was approved, which includes Connecticut, and in March 2014, she was granted a hardship transfer to the Waterbury, Connecticut Office, which Complainant wrote on appeal was due to her difficulty with walking and mobility. ROI, Exh. 8, at 4, Complainant's appeal statement.
ANALYSIS AND FINDINGS
Disability
The events in this case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which expanded the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Under EEOC regulations implementing the ADAAA, an individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has record of such an impairment; or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g). A physical or mental impairment is defined as: (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or (2) any mental or psychological disorder. 29 C.F.R. � 1630.2(h). The impairment must substantially limit the ability of the complainant to perform a particular major life as compared to most people in the general population. 29 C.F.R. � 1630.2(j)(1)(ii). Major life activities include, in part, caring for one's self, performing manual tasks, seeing, walking, standing, concentrating, and thinking. 29 C.F.R. � 1630.2(i)(1)(i). Major life activities also include the operation of a major bodily function, such as in part neurological and brain. 29 C.F.R. � 1630.2(i)(1)(ii).
The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA. Consistent with this, the definition of disability shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. 29 C.F.R. � 1630.1(c)(4). In determining other examples of major life activities, a major life activity is not determined by reference to whether it is of central importance to daily life. 29 C.F.R. � 1630.2(i)(2). The term "substantially limits" shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the ADA. "Substantially limits" is not meant to be a demanding standard. 29 C.F.R. � 1630.2(j)(i). An impairment need not prevent, or significantly or severely restrict, the individual from performing a major like activity in order to be considered substantially limiting. 29 C.F.R. � 1630.2(j)(ii). The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, except ordinary eyeglasses or contact lenses. 29 C.F.R. � 1630.2(j)(vi).
In determining whether an impairment substantially limits a major life activity, it is useful to consider the condition and manner in which the individual performs the major life activity and/or duration of time it takes to do so. 29 C.F.R. � 1630.2(j)(4)(i). Consideration of facts such as condition, manner, or duration may include, among other things, consideration of the difficulty, effort, or time required to perform the major life activity; pain experienced when performing a major life activity, and the length of time a major life activity can be performed. 29 C.F.R. � 1630.2(j)(4)(ii).
An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 29 C.F.R. � 1630.2(j)(vii). The six month "transitory" part of the "transitory and minor" exception to "regarded as" coverage in � 1630.15(f) does not apply to the definition of "disability" under paragraphs (g)(1)(i) (the "actual" disability prong) or (g)(1)(ii) (the "record of" prong). The effects of an impairment lasting or expected to last six fewer than six months can be substantially limiting within the meaning of this section. 29 C.F.R. � 1630.2(j)(ix). Therefore, an impairment does not have to last for more than six months in order to be considered to be substantially limiting under the first or second prong of the definition of disability. The duration of the impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity. Impairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe. Appendix to Part 1630, at � 1630.2(j)(1)(ix).
Applying above, we find that Complainant was an individual with a disability. In her December 2012, request for reasonable accommodation, Complainant wrote that she had disabling conditions of leg pain and difficulty walking, and was having difficulty with mobility to and from her work station. This was supported by medical documentation she submitted: a doctor visit in July 2012, complaining of leg pain with moderate severity, radiating pain to the right leg with cramping, with symptoms of a year. September 2012 notes from Podiatrist 1's practice that Complainant was complaining of right post heel pain, and she had a right post heel spur, and Complainant was waiting for authorization for a CAM - presumably insurance authorization. Podiatrist 2 writing on December 4, 2012, that he was treating Complainant for acute Achilles tendonitis secondary to overuse, which was exacerbated by weight bearing and ambulation, and opining that her daily commute was having a negative impact on her injury. Podiatrist 1 wrote on December 4, 2012, that he was treating Complainant for chronic Achilles Tendonosis of the right foot, immobilization was required for approximately two months along with physical therapy, and recommended minimal walking, and she was scheduled for frequent physical therapy from December 11, 2012 through February 1, 2013. We find Complainant is substantially impaired in the major life activity of walking, and hence has a disability. Because we have made this finding, we need not further address Complainant's vertigo.
The term "qualified" with respect to an individual with a disability means the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m). Complainant was a Claims Representative, bilingual, GS-11, and served in this position for 10 years. The Agency does not contest that she was qualified.
Issue 1
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
The Hardship Coordinator explained that she denied the November 2012 hardship transfer request because Complainant did not meet the definition for a set of circumstances that requires a permanent reassignment - circumstances beyond her control, since by moving to a different geographic location Complainant created her own set of circumstances. She differentiated Complainant's situated from someone requesting a hardship transfer due to marriage to a person who lives and works elsewhere, a spouse's military transfer, or elder care.
Complainant has failed to show that this explanation was pretext to mask discrimination based on her age, race, or disability. Complainant contended that 71/2 years before when the Hardship Coordinator was in her office in a different job overseeing the interviewing area, she would only have Hispanic or African American employees do hard interviews. While not specifically asked about this, the Hardship Coordinator, who was not Complainant's supervisor then, countered that when she was assigned reception duties, she would assign, as would other management officials, claimants who did not speak English to the applicable bi-lingual interpreter, and Complainant received as many interviews as other Claims Representatives - each in the front-end interviewing area was assigned another interview as soon as she completed an interview. Complainant has not shown animus based on her race, age, or national origin.
Given that with her November 2012 hardship transfer request Complainant also wrote that she encountered various medical problems which made her commute more complicated and submitted medical documentation, we find that she was also requesting then to be transferred as a reasonable accommodation. Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
With her hardship transfer request, Complainant submitted limited medical documentation, with no letters by health care professionals that her medical conditions necessitated a shorter commute. Given this, we find that Complainant failed to establish at that time a nexus between the accommodation she was requesting an her disability. Accordingly, we find no discrimination on issue 1.
Issue 2
We find that the correct legal theory which applies is failure to reasonably accommodate. The Agency denied Complainant's request for reasonable accommodation on two grounds - (1) she is not an individual with a disability, and (2) she failed to show a nexus between her medical conditions and the accommodation she requested, both because she did not show her medical condition necessitated a shorter commute, and because she chose to move to a location with a six hour round trip commute from the Bore Hall field office, and commuting from home was not a function of her job.
We have already found that Complainant is an individual with a disability. Further, Complainant showed her medical condition necessitated a shorter commute. She submitted a letter by Podiatrist 2 dated December 4, 2012, who wrote Complainant was being treated for acute Achilles tendonitis secondary to overuse which was exacerbated by weight bearing and ambulation, that her daily commute was having a negative impact on her injury, and recommended a change in her workplace location to reduce her commute. This was backed up by Complainant writing in her reasonable accommodation request that she encountered complications with her illnesses related to her commute, wears a Cam Walker which at times alleviates her pain but she generally has very limited mobility, and a letter by Podiatrist 1 dated December 4, 2012, recommending minimal walking. Complainant's description of her three hour commute indicates repeated walking - walking to the commuter rail station platform or stop, walking to the subway platform, and walking up and down many staircases in the subway which aggravated her injury.
The Agency also found that Complainant chose to move to a location with a six hour round trip commute from the Boro Hall District Office, and commuting from home was not a function of her job. Complainant made her reasonable accommodation request in issue 2 after she moved on September 1, 2012, and realized the commute was aggravating her medical conditions. Commission precedent has established that a request for a shorter commute time due to disability triggers the agency's responsibility under the Rehabilitation Act. This includes the obligation to consider reassigning the complainant to shorten the commute to a vacant position. Phillippe v. Social Security Administration, EEOC Appeal No. 01A12653 (May 15, 2003).4
To establish entitlement to reassignment as a reasonable accommodation, a complainant must show that a vacant, funded position existed during the relevant time period or was likely to open. The burden is on the complainant to do this. Hampton v. United States Postal Service, EEOC Appeal No. 01986308 (Aug. 1, 2002); Complainant v. United States Postal Service, EEOC Appeal No. 0120140221 (April 8, 2014).
Here, Complainant submitted evidence that she applied and was rejected for three vacancy announcements that closed in May 2012 and July 2012. They were located in Connecticut in New Haven, Meriden and Torrington - a Service Representative, GS-5 to 8, a Supervisory Social Insurance Specialist, GS-12, and a Claims Representative, GS-5 to 11. Regarding the evidence of a GS-12 opening, an Agency is not required to promote an employee as a form or reasonable accommodation. Complainant submitted documentation showing that she was entitled to consideration for the reasonable accommodation of a shorter commute starting in the December 2012 - January 2013 time period. But she did not met her burden of showing there were funded, vacant positions which existed during the relevant time period or were likely to open in the parts of Connecticut she was seeking. Accordingly, Complainant has failed to show that the Agency violated the Rehabilitation Act when it denied her reasonable accommodation request. Nor has she proven discrimination based on race or age when she was denied a reasonable accommodation.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 t he Commission. The
court 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
September 15, 2016
__________________
Date
1 This 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.
2 The report listed numerous "symptoms," with positive and negative signs. With the structure of the report, a negative sign generally meant a denial of symptom. Hence, it is unclear what these two positive signs meant in this context. We note that Complainant complained that day to the physician of active leg pain, which is contrary to comfort.
3 The date on the letter Complainant provided with her reasonable accommodation request was illegible. A clean copy with the date is elsewhere in the record.
4 While the Agency cites federal district and circuit court decisions for the proposition that an employer is not required to reasonably accommodate the need for a shorter commute, in the federal sector administrative process such court decisions may be persuasive or instructive, but are not binding on the Commission. Lavern B. v. Department of Housing and Urban Development, EEOC Appeal No. 0720130029 (Feb. 12, 2015)(a commute case).
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