0120141498
10-26-2016
Hertha W.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hertha W.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120141498
Hearing No. 410-2012-00239X
Agency No. 9R1M11184
DECISION
On March 13, 2014, Complainant filed an appeal from the Agency's February 10, 2014, final decision 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD).
ISSUE PRESENTED
Whether the Agency properly found that Complainant was not subjected to discrimination on the basis of her physical disabilities when from December 2010 to the present her Director and immediate supervisor refused to completely accommodate her by providing her with upgraded software programs sufficient to perform her work-related duties.
BACKGROUND
The Agency employed Complainant as a Writer-Editor, GS-1082-09, in Public Affairs, 78th Air Base Wing, Warner-Robins Air Logistics Center on Robins Air Force Base, Georgia. The record indicates that in her position, Complainant was responsible for researching, analyzing, distilling and presenting information either in a variety of fields or with a broad and non-specialized approach in a single field. Complainant worked in her Writer-Editor position with accommodations for her vision impairment until July 7, 2008, when she suffered an injury to her left wrist. On October 28, 2008, she underwent surgery for "left cubital tunnel syndrome" that left her with "reflex sympathetic dystrophy" in her left wrist and prevented her from working for approximately two years.
On September 20, 2010, the Agency sent Complainant a letter advising her that they had been directed by the Office of Workers Compensation Program (OWCP) to offer her a permanent light duty position within her medical restrictions. The Agency further advised her that in accordance with this directive, a Writer-Editor position in the Public Affairs Office was available immediately at her former Writer-Editor salary. Complainant returned to work on December 8, 2010, for half-days, with permanent restrictions of "no use of the left hand/arm for repetitive use ... awkward use, gripping or strenuous use," in addition to her permanent vision restrictions.
On December 15, 2010, Complainant was seen by Occupational Medicine Services (OMS) for pain in her right hand, at which time she advised the OMS physician that she had been diagnosed with the same condition in her right hand that she had previously been diagnosed as having in her left hand (ulnar nerve entrapment). At the recommendation of her personal physician, Complainant was placed on leave until December 27, 2010, when she returned with restrictions on the use of her right hand and arm, in addition to her previous permanent vision and left arm/hand restrictions. Complainant's right hand and arm restrictions consisted of no more than five minutes per hour of repetitive use and gripping use and no use of vibratory tools, awkward use or strenuous use. As a result of her hand and arm restrictions, Complainant could not use her left hand or arm to perform any activities and could only use her right hand and arm for five minutes an hour.
Complainant sought EEO counseling on May 5, 2011, and once her concerns were not resolved during the informal process, she filed a formal EEO complaint on September 13, 2011 alleging that she was discriminated as articulated in the statement of "Issues Presented" above. 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. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to establish that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit any contentions on appeal. In response to Complainant's appeal, the Agency requests that the Commission affirm its FAD because Complainant failed to establish her claim that she was denied a reasonable accommodation. While the Agency does not dispute that Complainant has a disability under the terms of 29 C.F.R. � 1630.2(g), it does contend that Complainant was not a qualified individual with a disability.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
At the outset, we note that Complainant's complaint also contained an allegation alleging that she was subjected to disability discrimination when she was called into her supervisor's office and accused of being asleep at work (Claim 2). The Agency dismissed this claim on the grounds that it failed to state a claim because no action was taken against Complainant and therefore she was not aggrieved. The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (Aug. 5, 2015). Because Complainant has not specifically contested Claim 2 on appeal, we will limit our review to her denial of accommodation claim. The Agency's dismissal of Claim 2 is AFFIRMED.
Denial of 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. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation.
A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). "[T]he word 'accommodation' ... conveys the need for effectiveness." Id. "An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." Id. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. See Guidance. A complainant who seeks to hold an agency liable for failing to accommodate a disability need not show that they have suffered an adverse employment action. An agency is required to accommodate an employee's disability whether or not a failure to do so is motivated by discrimination based on that disability.
For purposes of analysis only we will assume, without so finding, that Complainant is an individual with a disability. Complainant, however, has not shown that she could perform the essential functions of her position as a Writer-Editor with or without an accommodation, i.e., she has not established that she is a qualified individual with a disability. The record indicates that the Agency attempted to accommodate Complainant, but she was still unable to perform the duties of her position with the accommodations provided. Each of the four critical duties of Complainant's position required extensive writing, researching, editing, and reviewing of printed text. Although sent before Complainant was restricted in the use of her right arm, the September 20, 2010 return to work letter from the Agency advised Complainant that the Writer-Editor position they found for her required her to generate three news articles and five story ideas per week, in addition to proof-reading newspapers and assisting the Program Manager with various light duty tasks. Even after Complainant was asked by her first level supervisor (S1) to only produce one story, she indicated that she could not type, write, or move her hands, even though she was supposed to be able to do these things for short periods of time. In a January 7, 2011 Memo for Record (MFR), S1 noted that Complainant had only completed one minor task, but was primarily answering the office phones.
Even if we were to assume that Complainant was a qualified individual with a disability, based on the record before us, we would not find that she was denied a reasonable accommodation. While Complainant made no explicit request for an accommodation upon her return to work in December 2010, S1 stated that it was obvious she would need an accommodation for her "wrist condition" and as a result management officials initiated the interactive process to determine what accommodations would enable Complainant to perform her duties. Management identified six accommodations the Complainant would need to perform her duties: Dragon Speak, Zoom Text, a foot mouse, a hands-free recording device, a forearm support stabilizer and software training.
Although Complainant contends management refused to completely accommodate her by providing her with upgraded software programs sufficient to perform her work-related duties, the record reflects that while there were some delays, Complainant was provided with the accommodations determined necessary to assist her in performing the duties of her position. The record establishes that the installation of all equipment and training on the equipment did not occur until December 2011. According to the Agency, management's efforts to identify, obtain, and install appropriate accommodations for Complainant were ongoing since December of 2010. Many of the delays were a result of circumstances outside management's control, such as delays in the scheduling Complainant's assessment and the lack of Agency approvals for upgrades. Complainant was kept informed of management's efforts throughout the process, and the Agency limited many of Complainant's duties to conform to her restrictions as an accommodation. Complainant was only evaluated according to those limited duties.
A protected individual is entitled to a reasonable accommodation, she is not necessarily entitled to the accommodation of choice. See Castaneda v. United States Postal Service, EEOC Appeal No. 01931005 (February 17, 1994). The employer may choose among reasonable accommodations so long as the chosen accommodation is effective. U.S. Airways v. Barnett, 533 U.S. 391, 400 (2002). In this case, we find that the Agency took care in assessing which accommodations would be most effective for Complainant. The Agency identified those accommodations and began taking steps to have them put in place for Complainant. We find insufficient evidence showing that any delay in obtaining all the necessary upgrades, and coordinating all the necessary training for Complainant significantly impacted her job performance. Complainant's duties were already significantly reduced in accordance with her medical restrictions. Accordingly, assuming she were qualified, we find that Complainant did not establish that she was denied a reasonable accommodation.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's FAD. Complainant did not establish that she was a qualified individual with a disability. Even assuming, arguendo, that she was able to establish that she was a qualified individual with a disability, she did not prove that she was denied a reasonable accommodation.
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 the 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
_10/26/16_________________
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.
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