01a42703
07-19-2005
Jonathan M. Dietch, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Jonathan M. Dietch v. Department of the Treasury
01A42703
July 19, 2005
.
Jonathan M. Dietch,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A42703
Agency No. TD 03-4029
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful 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.
The record reveals that during the relevant time, complainant was employed
as a Revenue Agent, GS-512-13, at the agency's El Segundo, California
facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on October 29, 2002, alleging that he was discriminated
against on the basis of disability when:
Complainant's August 2, 2002 request to engage in an interactive
discussion regarding reasonable accommodation was not granted.
On March 11, 2003, complainant filed an amendment to his original
complaint regarding three incidents of alleged retaliation for prior
EEO activity. Specifically, complainant alleged that (1) the October 3,
2003 affidavit of his supervisor, Person A, contained false and misleading
statements; (2) the March 3, 2002, electronic mail message he received
from the EEO Manager regarding his request for a reasonable accommodation
was insulting and inflammatory; and (3) on March 3, 2002, co-worker 1
informed complainant that she had met with the EEO Investigator regarding
the present complaint.
On March 17, 2003, the agency dismissed these three issues in the
amendment for failure to state a claim. The agency found that issues
(1) and (3) involved an attack on the EEO process. Additionally, with
regard to issue (2), the agency found that complainant failed to show that
the alleged incident deterred him from pursuing his rights. The agency
informed complainant the three incidents would not be investigated.
On April 18, 2003, complainant requested to amend his complaint to
include management's failure to address his request for coaching as
an accommodation. Later on April 18, 2003, complainant withdrew his
request to amend.
On May 21, 2003, complainant requested an amendment to his complaint
to include a May 21, 2003 denial of his request for a reasonable
accommodation.
On May 23, 2003, the agency amended complainant's complaint finding the
May 21, 2003 denial of reasonable accommodation claim like or related
to his original complaint.
On May 22, 2003, complainant raised concerns about deficiencies in the
Investigative File.
On June 2, 2003, the agency agreed to address these deficiencies by
adding complainant's rebuttal to management's response and an affidavit
of a similarly situated employee.
On June 2, 2003, complainant requested his complaint be amended to include
(1) a May 21, 2003 denial of reasonable accommodation and (2) a May 19,
2003 memorandum entitled Case Review which documented complainant's
negative performance and which complainant believed will be used for
his removal in the future.
In a June 4, 2003 letter, the agency noted that the investigation of
complainant's complaint was completed on June 2, 2003, and an election
letter was sent on the same day, prior to receipt of the June 2, 2003
amendment request. The agency informed complainant that if he elects
a hearing on his complaint, he can make a motion to amend to include
the issues in the June 2, 2003 amendment request, or alternatively,
if he does not elect a hearing, the agency informed complainant he can
pursue the issues as a new complaint.
Thereafter, the agency conducted an investigation on whether complainant
was discriminated against based on disability when: (1) complainant's
August 2, 2002 request to engage in an interactive discussion regarding
reasonable accommodation was not granted and (2) on May 21, 2003, the
agency denied complainant's reasonable accommodation request.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Initially,
complainant requested a hearing before an AJ. However, on August 28,
2003, complainant withdrew his request for a hearing.
The agency issued a final decision on complainant's complaint on February
6, 2004. The agency concluded that complainant failed to establish
that he is an individual with a disability. The agency noted that
complainant suffered from dysthmymia, bipolar disorder, and attention
deficit disorder (ADD), which fall within the definition of an impairment.
However, the agency noted that conditions that qualify as impairments
are not automatically considered disabilities. The agency found that
the medical evidence submitted by complainant document he is limited in
the ability to focus and concentrate on tasks. The agency noted that
the medical documentation provided does not support that this limitation
is substantial, does not specify how it impacts complainant outside the
workplace, and does not specify the duration of the impairment (although
the agency acknowledges it is most likely a chronic condition). Thus,
the agency found that complainant's impairment does not establish a
prima facie case.
However, the agency noted that it has entered into a discussion of
reasonable accommodation with complainant. Thus, the agency continued its
analysis as if complainant has established that he meets the definition
of disabled.
The agency next examined whether complainant was a qualified person
with a disability. The agency noted complainant has been successfully
performing the full range of duties of his job for a number of years.
The agency noted it was not clear whether he was granted an accommodation
during this time. The agency stated that management has responded to
complainant's requests for assistance and flexibility, but noted it was
not clear that these actions were made as a reasonable accommodation for
a disability. Regardless, the agency found that complainant is qualified
for the job and is able to perform the essential functions of the job.
The agency stated that even assuming complainant is an individual with
a disability, he has failed to establish a prima facie case because
he has not been prevented from performing his job as a result of the
agency's alleged failure to provide accommodation. Specifically, the
agency noted that complainant has been successfully performing his job
without any accommodation for at least five years. The agency noted that
complainant's performance has been documented through 2002 as successful.
Assuming arguendo that complainant has established a prima facie case,
the agency addressed the two issues raised in his complaint. With regard
to issue (1), the agency noted that complainant notified management of
his impairment in 1999, and entered into several formal and informal
discussions about how to request a reasonable accommodation. The agency
stated complainant did not submit any written requests for accommodation
during this time but management had been flexible about job duties.
The agency noted one minor request for accommodation was made in March
2001 and granted.
The agency explained that in 2002, complainant began reporting to a new
first-line supervisor, Person A. The agency stated that at this time,
complainant perceived that Person A had different expectations and would
not let him do his job the way he had previously done it. The agency
noted that the triggering event occurred on August 2, 2002, when
complainant requested to discuss �some practical solutions� with Person A.
The agency stated it is possible Person A did not recognize this as a
request for reasonable accommodation. The agency noted Person A did not
initiate a discussion in response to this request. However, the agency
explained that on August 9, 2002, during a discussion concerning another
matter, the request was discussed. The agency noted that on August 9,
2002, complainant told Person A that he would contact the EEO Office about
his request. The agency noted complainant did contact the EEO Office and
submitted a request for an accommodation on October 18, 2002. The agency
noted the EEO Office requested medical documentation, which complainant
provided with a list of eight specific accommodations on February 28,
2003. The agency recognized Person A's handling of the situation was
not problem-free but found complainant's claim that he was not offered
the opportunity to request an accommodation not supported. The agency
stated that while a delay occurred in handling complainant's request,
the supervisor did ask complainant about a reasonable accommodation
shortly thereafter and he replied he was already handling it through
the EEO Office. The agency stated that there is no evidence that the
delay caused complainant harm or that it interfered with his performance.
With regard to issue (2), the agency noted that twenty-days after
receiving the documentation, the EEO Office notified complainant and
management of the recommendation made by the Department of Health
and Human Services Federal Occupational Health Agency Consultant.
The agency stated that on May 21, 2003, Person A issued a letter
to complainant �denying� the request for reasonable accommodation.
The agency explained that the letter does support granting flexible
breaks, hearing protectors (although not with the conditions requested
by complainant), and an interactive environment. The agency noted that
the letter did not support other requests, most of which it stated are
about personal preference and no about accommodation.
On appeal, complainant contends that he is a qualified individual with
a disability who made a valid request for reasonable accommodation which
was not provided by the agency. Specifically, complainant states that the
agency failed to respond to his written and verbal requests of August 2,
2003, and August 9, 2002. Complainant states that his supervisor, Person
A, made conflicting statements in her testimony (namely that Person A
did not meet with complainant on August 9, 2002, and that complainant
asked her former supervisor to take the binder containing complainant's
reasonable accommodation requests when her former supervisor left).
Complainant also claims that the territory manager, Person B made
conflicting statements when he stated in his affidavit that he has
no knowledge of any other employee in his territory that requested a
reasonable accommodation; yet, complainant provided the affidavit of
co-worker 2 who states he met with Person B who took his accommodations
away from him. Further, complainant disputes Person B's statement that on
July 11, 2002, Person B made a work paper and audit planning presentation
as an accommodation for complainant. Complainant also notes that
although co-worker 1 stated that she personally coached complainant on
six occasions, he states she was present on three occasions. Finally,
complainant requests the Commission consider new evidence on appeal.
Complainant states that since the agency never disputed that he had a
disability, he did not offer further details. On appeal, complainant
submits his unsworn declaration dated April 5, 2004, and exhibits, as
well as evidence of his legal fees and emotional distress. Complainant
also submits an April 5, 2004 supplementary medical diagnosis from
his therapist.
The agency requests that we affirm its final decision. At the outset,
the agency argues the new evidence provided on appeal should not be
considered. The agency notes that complainant seeks to submit an April
5, 2004 declaration from himself and an April 1, 2004 statement from
his therapist. The agency notes that in his declaration complainant
describes how his condition limited his activities and it argues that
such �evidence� was reasonably available to complainant prior to the
issuance of the agency's decision. Additionally, the agency argues
that complainant could have obtained a more detailed statement from his
therapist prior to the issuance of the final decision.
The agency notes that in his declaration, complainant references feedback
received on July 7, 2003, where his manager allegedly told him his
performance was unacceptable. The agency states that to the extent this
is relevant, complainant should have submitted evidence of this issue
prior to the issuance of the agency decision. The agency also notes
that in his declaration, complainant describes leave used in 2003.
The agency states that to the extent this is relevant, complainant
should have submitted this to the agency prior to the issuance of its
final decision. The agency notes that in his declaration on appeal,
complainant states he discovered a statement from co-worker 1 in his
Employee Personnel Folder regarding assistance she provided him and
again the agency states that to the extent it is relevant, complainant
should have submitted it prior to the agency's February 6, 2004 decision.
Finally, the agency notes that on appeal complainant submits a February 4,
2004 appraisal rating him as unacceptable and a March 18, 2004 opportunity
letter. The agency argues that neither of these documents have relevance
to the issues in the present complaint.
Finally, the agency claims complainant failed to establish any error
warranting reversal of the agency's final decision. The agency notes that
it provided a detailed analysis of why complainant fails to establish
his claim of disability discrimination which complainant largely does
not dispute. The agency notes complainant argues certain managers were
not credible on issues peripheral to the issues raised in this case.
The agency notes that complainant does not dispute that when Person
A asked him if he wanted her to follow up on his request with the EEO
Office, he said he had already taken care of it.
The record contains complainant's August 2, 2002 electronic mail message
to Person A regarding �Disclosure of a psychiatric disability� in
which he states he �would like to sit down with [her] and work out some
practical solutions to dealing with� his impairment. Complainant notes
he suffers from dysthymia, a chronic, long-term form of depression.
He notes he has had this condition since childhood and it is expected to
continue indefinitely. Complainant states its intensity varies over time
but never leaves. He states that at times it may significantly impair
his �ability to perform some aspects of [his] job duties.� Complainant
states that with �understanding, cooperation and encouragement this can
be successfully coped with and [he] can be productive at [his] job.�
Complainant notes that he did not disclose his disability sooner for
fear of discrimination.
The record contains complainant's February 28, 2003 request for
reasonable accommodation addressed to the Director, EEO & Diversity.
Complainant states he has been diagnosed with major depressive disorder,
Severe Attention Deficit Disorder, and bipolar disorder. He states
that these impairments significantly restrict the condition under which
he can perform the major life activity of concentrating. Complainant
requests the following reasonable accommodations: (1) bright overhead
lighting and adequate ventilation equivalent to what he currently has;
(2) an on-the-job audit coach; (3) any noisy and/or high traffic office
equipment be located at least 40 feet away from his existing desk;
(4) that he wear his own external or internal hearing protectors of
up to 40dB attenuation across the 20Hz to 20,000Hz auditory spectrum,
at his own professional discretion (and, furthermore, no one shall have
authority to order him to wear or remove the hearing protectors); (5)
during periods when he cannot concentrate on his work, he be allowed to
take short breaks and if he exceeds the total allotted non-lunch 30 minute
break, he may make up the time prior to 7:00 p.m. or be charged credit
hours or leave; (6) placement on a flexible work schedule; (7) that he
be allowed to work in an interactive environment versus an isolated one;
and (8) reassignment to the currently vacant position of Fraud Referral
Specialist, announcement number SBB-SBL-3207.
The record contains the agency's May 21, 2003 letter from Person A
stating that complainant's request for reasonable accommodation has been
denied based on the findings of the physician at the Federal Occupational
Health Agency. The letter addressed all eight of complainant's requested
accommodations. With regard to request (1), the letter noted that the
physician indicates that bright light and adequate ventilation would
be helpful with complainant's concentration. The physician noted that
this should be available to all agency employees and is not considered
a specific accommodation for complainant's condition. With regard to
request (2), the physician noted that a manager or fellow employee should
be in a helpful role to direct complainant's focus and concentration;
however, overall coping strategies relating to ADD fall more in the
role of treatment than accommodation. With regard to request (3), the
physician stated complainant should be in as quiet an environment as
administratively possible. With regard to request (4), the physician
indicated that it would be reasonable for complainant to wear hearing
protectors if he is easily distracted by noise. However, the physician
noted that complainant's request that no one shall have authority to order
him to wear or remove the hearing protectors appears to be over what is
required as an accommodation and could lead to a dangerous situation.
With regard to request (5), the physician noted complainant is likely to
have periodic difficulties focusing that could be accommodated by letting
him have short breaks and allowing him to stay later to make up time,
if it can be administratively arranged. With regard to request (6),
the physician stated that he did not see how complainant's condition
required him to start work at variable times; but noted that it would
be reasonable for complainant to start work as early as possible so he
could have time for breaks as needed during the day when concentration
is diminished. With regard to request (7), the physician stated that
work in an interactive environment would probably be useful and advised
that complainant should be checked on fairly frequently to ensure he
is concentrating on the work at hand. Further, the physician stated
that allowing complainant to work long periods on individual projects
could result in his mind wandering. With regard to issue (8), the
physician indicated that complainant's reassignment to a specific,
currently available position would be a personal preference rather than
an accommodation for a medical condition. The physician added that if
complainant is qualified and the above parameters can be met for that
position, complainant should be considered along with other applicants.
At the outset, we note complainant does not challenge the agency's
definition of the complaint and does not challenge the agency's denial of
his March 11, 2003 or June 2, 2003 amendments. Upon review, with regard
to issue (1), we find complainant failed to show that he was subjected
to discrimination based on disability. With regard to complainant's
August 2, 2002 request to sit down with Person A and discuss �practical
solutions� to coping with his impairment, we note that complainant does
not dispute the agency's assertion that on August 9, 2002, when Person
A asked him about pursuing a reasonable request, complainant advised
that he was in the process of handling the matter with the EEO Office.
Thus, we find that complainant has not shown that the agency denied him
the opportunity to engage in the interactive process with regard to his
August 2, 2002 request.
With regard to issue (2), we note that although the agency's May 21, 2003
letter states that complainant's request for reasonable accommodation
has been denied, in fact, the agency did grant some of the requested
accommodations in that letter. Specifically, although the agency denied
complainant's request for a job coach, to begin work at variable times,
and reassignment to another position, the record reveals that the agency
supported: the bright overhead light and ventilation, which complainant
admitted he currently had; that supervisors and co-workers be helpful in
helping complainant direct and focus his concentration; that complainant
be in a quiet environment away from noisy equipment; that complainant be
permitted to wear hearing protectors but that management retain the right
to order him to remove them if rapid oral communication were required;
that complainant be permitted short breaks; and that complainant work in
an interactive environment. We find that complainant failed to show how a
job coach, working at variable times, or reassignment, were necessary to
accommodate his purported disability in relation to performing his work
functions. Furthermore, on appeal, complainant does not specifically
explain how he was not accommodated except to reference, in general
terms, the �job coach� issue. By electronic mail message dated April 15,
2003, the agency denied the �Coaching Program� for complainant on the
grounds that complainant had received sufficient Revenue Agent training
and informal training. The Commission finds that complainant has not
shown why he needs a job coach to be able to function in his position.
Upon review, we find complainant failed to show his purported disability
was not reasonably accommodated by the agency.
Therefore, we AFFIRM the agency's final decision.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
July 19, 2005
__________________
Date
1We do not address in this decision whether complainant is an individual
with a disability.