0120102071
02-11-2011
Holly Birchfield, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Holly Birchfield,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120102071
Hearing Nos. 410-2008-00348X and 410-2009-00330X
Agency Nos. 9R1M07148 and 9R1M09012
DECISION
On April 14, 2010, Complainant timely filed an appeal from the Agency's
March 21, 2010, final decision concerning her equal employment opportunity
(EEO) complaints 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 Commission accepts the appeal
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission MODIFIES the Agency's final decision.
ISSUE PRESENTED
The issue presented whether the Agency's final decision was correct in
finding that Complainant was not denied a reasonable accommodation for
her disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Writer-Editor, GS-9, at the Agency's Office of Public Affairs (PA),
78th Air Base Wing, Warner Robins Air Logistics Center, Robins Air Force
Base, Georgia. ROI Agency No. 7148, Complainant's Decl., at 80. As a
Writer-Editor, Complainant's duties, included, among other things, the
composition of written materials, such as reports, articles, pamphlets,
scripts, and speeches. ROI Agency No. 7148, Ex. F, at 109. Complainant is
legally blind and uses a guide dog to assist her. ROI Agency No. 7148,
Complainant's Decl., at 78-79. Since 2005, Complainant and all PA
employees had been assigned additional duties. ROI Agency No. 7148,
Chief of Community Relations Decl., at 109. Complainant's additional
duties were that of Safety Manager, Security Manager, and Telephone
Control Officer. ROI Agency No. 7148, Complainant's Decl., 86. In March
2007, Complainant requested to be relieved of these duties, indicating
that her disability made performing these duties difficult. ROI Agency
No. 7148, Complainant's Decl., at 86. On July 26, 2007, as a result of
a planned reorganization, the PA offices were relocated to the second
floor of Building 905. ROI Agency No. 7148, Complainant's Decl.,
at 80-81. At the time of relocation, the second floor was undergoing
renovations with construction material littered around the elevator. ROI
Agency No. 7148, Chief of Public Affairs Decl., at 96. Complainant was
informed days before the relocation that, she and her guide dog would
have to climb and descend two flights of stairs to get to the second
floor until construction was completed. ROI Agency No. 7148, Ex. F-12,
at 160. Complainant objected to going up two of flights of stairs,
citing the difficulty to her and her guide dog. ROI Agency No. 7148,
Complainant's Decl., at 83. Thereafter, prior to the relocation,
Complainant requested improved hand rails and stair tread pads in the
stairwell as accommodations. Id. at 82-84. Complainant also requested,
instead, that she be given office space on the first floor, but management
denied her request. Id. at 84. As a result, Complainant was required to
use the stairs for one to two months until construction was completed
around the elevator. ROI Agency No. 7148, Complainant's Decl., at 83; ROI
Agency No. 7148, Safety and Occupational Health Manager Decl., at 136.
On August 20, 2007, in response to Complainant's disposal of her
guide dog's water, the PA office instituted a policy that prohibited
the disposing of liquids in the water fountain. ROI Agency No. 7148,
Ex. F-18, at 192. As such, Complainant could no longer dispose of
her guide dog's water in the office fountain. ROI Agency No. 7148,
Complainant's Decl., at 85. As a result, Complainant was required to
go through four doors to enter and exit her office area and restroom to
retrieve clean replacement water for her guide dog. ROI Agency No. 7148,
Ex. F-18, at 196. Complainant found it difficult to open these doors while
also holding her guide dog and guide dog's water. Complainant stated,
"It was extremely difficult to maneuver with my lead on [my guide dog],
a water bowl in one hand, and then be able to open the doors required to
access the bathroom where I had to dump the water." ROI Agency No. 7148,
Complainant's Decl., at 85. Therefore, as an accommodation, Complainant
requested that four doors in Building 905 be automated to allow her
easier access. ROI Agency No. 7148, Director of Public Affairs Decl.,
at 128. However, Complainant's request for the automated doors was
denied by the Agency's Civil Engineering Office because the cost per
door was $5,000. Id. Further, until Construction was completed on the
second floor of building 905, Complainant also had to traverse the two
flights of stairs to get and dispose of water for her guide dog. ROI
Agency No. 7148, Complainant's Decl., at 85.
Later, on October 1, 2008, management gave Complainant an assignment
to cover a POW/MIA ceremony that was scheduled to start 3:00 p.m.,
30 minutes prior to the end of her work day. ROI Agency No. 9012,
Team Leader Decl., at 180. Also, on October 14, 2008, management told
Complainant that she could no longer conduct interviews at her desk,
directing her to use the conference room instead. Id. at 184
As a result, Complainant filed two formal EEO complaints on November
4, 2007, and December 21, 2008, respectively. Therein, Complainant
alleged that the Agency subjected her to discrimination on the basis of
disability, thereby denying her reasonable accommodation when:
1. since 2005, she has been required to perform the additional duties
of Security Manager, Safety Manager and Telephone Control Officer,
all of which exceeded the limits of her physical capabilities;
2. from July 26 to July 27, 2007, her office was moved to the second
floor of another building;
3. she was informed that her and her guide dog would not be allowed to
use the elevator in the new building; but instead, would be required to
climb two flights of stairs to reach her second floor office;
4. since July 26, 2007, management officials have failed to provide her
with necessary accommodation in the form of hand rails, floor mats and
modification of the entry, exit and restroom doors to allow her safe
access to and through these areas;
5. on October 1, 2008, she became aware that she had been given an
assignment from which she would not return until after duty hours; and
6. on October 14, 2008, her supervisor informed her that she would no
longer be able to conduct interviews from her desk; instructing her,
instead, to use the conference room for her interviews. 1
At the conclusion of the investigations, the Agency provided Complainant
with copies of the reports of investigation and notice of her right
to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing but subsequently withdrew her
request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) on both complaints. The decision concluded
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
Initially, the Agency noted that Complainant met the definition of
a qualified individual with a disability within the meaning of the
Rehabilitation Act. Final Agency Decision, at 6. The Agency's decision
further noted that it articulated legitimate nondiscriminatory reasons for
it actions. In regards to claim 1, the Agency noted that it offered to
provide Complainant with assistance, which Complainant rejected. Id. at
11. The Agency further noted that all PA employees were given additional
duties. Id. at 12. With respect to claim 2, the Agency noted that the
PA's move to building B905 was the result of a reorganization that had
been planned since 2006. Id. As for claim 3, the Agency noted that the
elevator was located in an area that was being extensively remodeled
and construction debris made it hazardous for Complainant to use the
elevator. Id. Regarding claim 4, the Agency noted that Safety Office
in Charge immediately placed a work order for stair tread pads. Id. at
13. The Agency noted, however, that construction on the second floor
of building B905 had been completed, enabling Complainant to use the
elevator, by the time the tread pads were installed. Id. The Agency
also noted that Complainant requested that building B905's restroom and
office doors be modified to make it easier for her and her guide dog to go
through them. Id. In that respect, the Agency noted that Complainant had
difficulty retrieving water for her guide dog while attempting to open
four doors for access to her office and restroom. Id. at 18. However,
the Agency noted that Complainant had proven herself to be very capable
in maneuvering through the doors. Id. Further, the Agency noted that
the cost per door was $5,000. Id. at 13.
In regards to claim 5, the Agency noted that Complainant had been given 11
days of notice prior to the POW/MIA Ceremony assignment. Id. at 9. The
Agency further noted that Complainant was required to tape record
interviews in relation to the ceremony. In that respect, the Agency
noted that it advised Complainant that she could conduct interviews the
following day if she chose to. Id. at 8. The Agency also noted that it
advised Complainant that she did not have to stay for the entire ceremony
and could leave when she wanted to. With respect to claim 6, the Agency
noted that it offered Complainant with an Administrative Assistant to
aid in scheduling interviews. Id. at 10. The Agency further noted that
when Complainant conducted interviews at her desk it distracted coworkers
because of the volume of the conversations. Id. The Agency also noted
that Complainant was able to use her tape recorder in the conference
room to conduct the interviews. Id.
In summary, the Agency found that it met its obligations under the
Rehabilitation Acting, noting that Complainant was provided reasonable
accommodations, which allowed her to perform the essential functions
of her position Id. at 18. Further, the Agency found that Complainant
did not establish that its legitimate nondiscriminatory reasons were
pretext for discrimination. Id. Lastly, the Agency noted that the events
described with respect to claims 5 and 6 were not sufficiently severe
or pervasive to rise to the level of actionable harassment. Id. at 19-20.
CONTENTIONS ON APPEAL
Complainant does not submit a statement or brief in support of her
appeal. The Agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
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. (November 9, 1999) (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").
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).
Initially, we note that although the Agency also addresses Complainant's
claims under a disparate treatment analysis, we find that it is more
properly viewed as reasonable accommodation claim. Further, because the
Agency does not contest that Complainant was a qualified individual with
a disability under the standards enunciated in the Rehabilitation Act,
that issue will not be addressed herein.
Claims 2, 3, and 4
With respect to claims 2, 3, and 4, we find that the Agency failed
to provide Complainant with an effective accommodation. We note that
Complainant was forced to take two flights stairs as a result of
construction occurring around the elevator. As a result, Complainant
requested improved hand rails and stair tread pads in the stairwell
as accommodations because her and her guide dog found it difficult
to traverse the stairs. ROI Agency No. 7148, Complainant's Decl.,
at 83. Also, Complainant requested that she be allowed to work on the
first floor until construction around the elevator was completed. Id. at
84. The record reflects that Complainant had to go up and down the stairs
on an average of 10 times a day until construction was completed around
the elevator. Id. at 85. We note, that although the Agency eventually
modified the stairwell, construction on the second floor of building B905
had already been completed by the time it did so. ROI Agency No. 7148,
Chief of Internal Information Decl., at 116. As a result, Complainant had
already been using the elevator by the time the stairwell was modified by
the Agency. Id. We further note that the Agency has provided no evidence
showing that allowing Complainant to work on the first floor until
construction was finished would have resulted in an undue hardship. See
Reasonable Accommodation Guidance. We also note that the Agency had been
aware of the relocation at least seven months prior, but only notified
Complainant days before the move that she could not use the elevator.
ROI Agency No. 7148, Ex. F-12, at 160.
Complainant also requested that four doors be automated to accommodate
her for her disability. Specifically, Complainant requested this
accommodation because she had difficulty retrieving water for her guide
dog while attempting to open four doors for access to the office suite
and restroom. However, the Agency denied Complainant's request to install
automated doors.
The burden now shifts to the employer to provide case-specific evidence
proving that providing reasonable accommodation would cause an undue
hardship in the particular circumstances. See Reasonable Accommodation
Guidance. Here, the Agency noted that it refused Complainant's request to
install the four automatic doors because the cost per door was $5,000. A
determination of undue hardship should be based on several factors,
including: (1) the nature and cost of the accommodation needed; (2)
the overall financial resources of the facility making the reasonable
accommodation; the number of persons employed at this facility;
the effect on expenses and resources of the facility; (3) the overall
financial resources, size, number of employees, and type and location of
facilities of the employer; (4) the type of operation of the employer,
including the structure and functions of the workforce, the geographic
separateness, and the administrative or fiscal relationship of the
facility involved in making the accommodation to the employer; and (5)
the impact of the accommodation on the operation of the facility. See
Preston v. U.S. Postal Serv., EEOC Appeal No. 0120054230 (Aug. 9, 2007);
Reasonable Accommodation Guidance.
Here, we find that the Agency has failed to meet its burden of
establishing that Complainant could not be accommodated without an undue
hardship to the Agency. Although the cost per door may have been $5,000,
the Agency has presented no evidence to establish that it attempted to
accommodate Complainant to make it easier for her and her guide dog
to move through the doors. In fact, the Agency presented no evidence
of accommodation whatsoever in this instance, i.e., replacement doors,
door modification, placing door stoppers, or assigning coworker(s) to
assist. Rather, the Agency only indicated that Complainant was physically
capable of moving through the doors. ROI, Chief of Public Affairs Decl.,
at 97. Moreover, the Agency has presented no evidence of accommodation
with respect to enabling Complainant to dispose of and obtain water
for her guide dog, besides having her travel through four doors and two
flights of stairs to do so. Also, as noted above, in determining whether
an accommodation is too costly, we are required to consider the overall
financial resources of the Agency, and not simply the resources of the
facility in question. Here, we are not persuaded that the reasonable
accommodation that Complainant sought was so costly as to impose an
undue hardship on the Agency. Given the size and annual budget of the
Agency, we find that any claim by the Agency that providing automatic
doors for Complainant in circumstances such as this would result in an
undue hardship to be without merit. See Degnan v. U.S. Postal Serv., EEOC
Appeal No. 01A53689 (Mar. 23, 2006); Reasonable Accommodation Guidance.
Accordingly, we find that the Agency subjected Complainant to unlawful
discrimination based on disability when it failed to accommodate her by
modifying the stairwell and doors thereby granting Complainant and her
guide dog sufficient access to the work facility.
Claims 1, 5, and 6
With respect to claims 1, 5, and 6, we find that the Agency reasonably
accommodated Complainant for her disability. In regards to claim 1, the
record reflects that management provided and offered Complainant with
assistance in the performance of the extra duties assigned to her. ROI
Agency No. 7148, Safety and Occupational Health Decl., at 137; ROI Agency
No. 7148, Chief of Internal Information Decl. 118-119. The record further
reflects that the Agency relieved Complainant of the additional duties as
she requested. ROI Agency No. 7148, Chief of Community Relations Decl.,
at 110; ROI Agency No. 7148, Director of Public Affairs Decl., at 129;
ROI Agency No. 7148, Chief of Internal Information Decl., at 119-120. As
for claim 5, we note that the Agency assigned Complainant to the POW/MIA
ceremony, which was scheduled to start 30 minutes prior to the end of her
work day. ROI Agency No. 9012, Team Leader Decl., at 180-183. However, the
record reflects that management advised Complainant that she could conduct
interviews the following day if she chose to. Id. Further, the record
reflects that management advised Complainant that she did not have to
stay for the entire ceremony and could leave when she wanted to. Id. The
record also reflects that management gave her advanced notice of the
ceremony. Id. Regarding claim 6, the Agency also noted that Complainant
was able to use her tape recorder in the conference room to conduct the
interviews. Id. at 185. We note that while a protected individual is
entitled to a reasonable accommodation, she is not necessarily entitled
to the accommodation of choice. See Castaneda v. U.S. Postal Serv.,
EEOC Appeal No. 01931005 (Feb. 17, 1994). The employer may choose
among reasonable accommodations so long as the chosen accommodation is
effective. U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002).
CONCLUSION
Therefore, the Commission AFFIRMS Agency's Final Decision with respect
to claims 1, 5, and 6. The Agency's decision with respect to claims 2,
3, and 4 is REVERSED and these claims are REMANDED to the Agency for
further processing in accordance with this decision and Order below.
ORDER
The Agency is ORDERED to take the following remedial action:
(1) Within thirty (30) calendar days from the date this decision becomes
final, the Agency shall provide Complainant with automated doors for
access to the second floor restrooms and office suite.
(2) Within thirty (30) calendar days of the date this decision becomes
final, the Agency shall give Complainant a notice of her right to submit
object evidence (pursuant to the guidance given in Carle v. Dep't of the
Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim
for compensatory damages, relevant to the Agency's failure to provide
Complainant with a modified stairwell and automatic doors.
(3) Within one hundred (180) calendar days of the date this decision
becomes final, the Agency shall train all employees at its Office
of Public Affairs, 78th Air Base Wing, Warner Robins Air Force Base,
responsible for the denial of 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.
(4) The Agency shall consider taking appropriate disciplinary action
against management officials identified as being responsible for
the discrimination perpetrated against Complainant. The Agency shall
report its decision. If the Agency decides to take disciplinary action,
it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline.
POSTING ORDER (G0610)
The Agency is ordered to post at its Office of Public Affairs (PA), 78th
Air Base Wing, Warner Robins Air Force Base, Georgia 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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the Agency.
The attorney shall submit a verified statement of fees to the Agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The Agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington,
DC 20013. 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 (M0610)
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 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
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 (R0610)
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 (Z0610)
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
February 11, 2011
Date
1 The Commission determines that Complainant's claim of harassment
comprised of the denial of reasonable accommodation, and we will not
address the claims separately. See Jones v. U.S. Postal Serv., EEOC
Appeal No. 0120100859 (Dec. 8, 2010).
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0120102071
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102071