0120140323
08-23-2016
Karol K.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karol K.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120140323
Agency No. FS-2012-00775
DECISION
On October 25, 2013, Complainant filed an appeal from the Agency's September 26, 2013, final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the decision pursuant to 29 C.F.R. � 1614.405(a). For the reasons stated below, the Commission AFFIRMS the Agency's final decision which determined that Complainant did not demonstrate that she was denied a reasonable accommodation or was subjected to reprisal or harassment.
ISSUES PRESENTED
The issue presented in this case is whether Complainant was subjected to disability discrimination when she was denied a reasonable accommodation and whether she was subjected to retaliation and a hostile work environment when management did not deliver her denial letter in a timely manner.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Forest Botanist, GS-11 at the Agency's Cleveland National Forest in San Diego, California. She maintained that she suffered permanent disabilities brought on by work conditions. Complainant indicated that she had high blood pressure, stress intolerance, osteoarthritis of the knee, chronic depression, anxiety, memory loss, concentration and focusing difficulty, and aggravation of an existing auto-immune disease resulting in debilitating fatigue. At the time that Complainant requested a reasonable accommodation, she had been on Family Medical Leave Act (FMLA) or Leave Without Pay (LWOP) for six months. As a reasonable accommodation, Complainant requested: (1) a flexible work day schedule; and (2) use of an occasional volunteer as she deemed necessary, or other personnel to help with field surveying, driving and occasional weekend work. Complainant stated that her disabilities interfered with her daily life but did not preclude her from performing the functions of her job if she was provided a simple accommodation. She also requested a maxi-flex schedule as an accommodation, and cited two employees who were allowed to work on a part-time temporary schedule.
Complainant submitted medical documentation to support her request. A note dated December 22, 2011, from physician 1 indicated that:
[T]he patient has osteoarthritis of the knee. I would not expect her to comply with hiking on a daily basis on uneven terrain without at least some assistance. This would be somewhat unrealistic.
On December 23, 2011, physician 1 submitted another note which stated:
I recommend that she have restrictions in her workplace essentially to limit standing and walking to 30 minutes continuously for a total of a maximum of three hours per day. In addition, she would not be able to lift any objects heavier than 30 pounds on an intermittent basis. She would be unable to walk or traverse on uneven terrain except on a very limited basis, possibly 10 minutes per day at most.
On January 20, 2012, physician 1 wrote "I believe that [Complainant] is at this time able to comply with her work requirements, with some assistance. Assistance would be at times and occasionally in the form of someone to accompany her for field survey work." On February 2, 2012, Complainant submitted a note from physician 2, which stated that she should "work a shortened work week/hours, flexible schedule as needed... and she should be accommodated for 4-6 months beginning with a 20 hour workweek."
Complainant's request for reasonable accommodation was sent to the Agency's Mission Area Designee (MAD) for an advisory opinion. On May 14, 2012, the MAD issued a letter which advised denying Complainant's request for reasonable accommodation as it would be a hardship on the Agency to grant her requests. Specifically, the MAD decision noted that it was a hardship for other employees to have to do her work, that the Rehabilitation Act did not support an open ended work schedule, and that the use of a volunteer to assist in field surveying and driving did not guarantee that the use of a volunteer would preclude Complainant from having to hike and traverse uneven terrain. It was recommended that Complainant participate in a workplace reassignment as an accommodation of last resort.
On May 25, 2012, Complainant's supervisor denied Complainant's request for reasonable accommodation. The supervisor noted that Complainant's extended absence had caused a hardship on the Agency because other staff members, including herself, were required to perform the essential duties of Complainant's position. She explained that a part time work schedule could not be granted because the Agency was experiencing staff vacancies, had a complex work program, and the request would prevent employees from doing their own work to fill in for Complainant. In response to Complainant's request for a flexible schedule, the supervisor noted that Complainant was already assigned a maxi-flex schedule and could earn credit hours. The supervisor explained their office needed a fulltime botanist to perform the work, which included field surveying, and regularly required some physical exertion such as long periods of standing, walking over rough, uneven or rack terrain, recurring bending, crouching, stooping, stretching, or reaching, or recurring moving, lifting and carrying moderately heavy items. The supervisor noted that the field environment was steep, rough, uneven, rocky and often involved negotiation of wooded or dense shrub cover. The supervisor indicated that given the medical documentation Complainant had submitted she was not able to perform the essential functions of her position. The supervisor maintained that Complainant had failed to provide medical documentation sufficient to support a finding that she was able to perform the functions of her job. Therefore, the supervisor agreed with the MAD opinion that Complainant should participate in a workplace reassignment.
Complainant maintained that the denial letter was mailed to the wrong address, and that the denial of her request for accommodation was a result of her prior EEO activity in 2010 and 2011. As such, on November 5, 2012, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of disability (physical and mental) and reprisal for prior protected EEO activity when:
1. on June 18, 2012, her request for reconsideration for a reasonable accommodation was denied; and
2. in May and June 2012, management obstructed her attempts for reasonable accommodation that included,
a. ignoring her repeated electronic mails for clarification; and
b. untimely mailing the June 1, 2012, letter of denial of appeal to a wrong address.
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. 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).
The Agency found that Complainant failed to prove that it subjected her to discrimination and harassment as alleged. Specifically, the Agency explained that while they agreed to adjust Complainant's core hours for a later start time and later end time, they could not allow her to work on the weekends because the botanist position required daytime work hours to coordinate with other employees, and field/work trips. The supervisor also agreed to situational telework for completion of certain document based assignments, but no other arrangements could be made. The supervisor noted that she believed that some of Complainant's suggestions were unrealistic or unreasonable, such as providing an assistant to drive her to the field because the roads were allegedly unsafe; providing an assistant to accompany the Complainant in the forest because there may be drug cartels. The supervisor stated that she was informed by human resources that approving Complainant's husband to accompany her to work in the fields would also be an inappropriate action.
The supervisor asserted that she was unaware how the denial letter was mailed to the wrong address but indicated that she did receive an email from Complainant on June 4, 2012, concerning the denial letter. The Agency also noted that Complainant filed for disability retirement on September 6, 2012, which was approved.
Management also indicated that it attempted to locate a vacant, funded position for Complainant but was unsuccessful. The Agency determined that while Complainant had the requisite skill, experience, education and other job-related skills for the botanist position, she could not perform the essential functions of her position with or without reasonable accommodation. Therefore, the Agency found that Complainant could not be considered a qualified individual with a disability. The Agency noted that Complainant's medical documentation dated December 23, 2011, indicated that she was limited in standing and walking to 30 minutes continuously for a maximum of 3 hours per day. She was also unable to walk or traverse on uneven terrain except on a very limited basis, possibly 10 minutes per day at most. The Agency also noted that a doctor's note dated January 20, 2012, indicated that she was able to comply with her work requirements, with some assistance, i.e., someone to occasionally accompany her for field survey work.
The Agency determined that based on the medical documentation submitted by Complainant, she would be unable to perform her "usual and customary" duties without worsening her condition, as well as causing substantial hardship to the Agency to accommodate. Moreover, regarding the mailing of the denial letter, the Agency did not find that Complainant's disability played a role.
With regard to Complainant's claim that she was subjected to reprisal, the Agency, among other things, maintained that while management was aware of her prior EEO complaints in 2010 and 2011, Complainant provided no evidence to support the required causal nexus between her prior EEO cases and the instant complaint. Finally, the Agency determined that even if the allegations were true, her claim that management ignored her repeated emails for clarification, and the untimely mailing of the June 1, 2012 letter of denial to a wrong address did not constitute adverse actions that affected a term or condition of employment. Finally, the Agency found that Complainant's claims were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal Complainant, among other things, contends, that the Agency failed to take the advice of the MAD which found that she was a qualified individual with a disability and instead the Supervisor maintained that she could not be reasonably accommodated. Complainant maintains that the Supervisor did not adequately try to accommodate her and as a result she filed for disability retirement on September 6, 2012. Complainant contends that the Agency did not give serious consideration to her requests for accommodation, and that there is no evidence that the Agency made a genuine effort to identify and provide an effective accommodation to her.
In response, the Agency maintains that the Agency's FAD should be affirmed. The Agency contends that the MAD's letter regarding Complainant's situation was advisory and the supervisor's letter which also denied Complainant's request added clarification for Complainant so that she would understand why her request was being denied. The Agency also maintained that Complainant did not establish that she was subjected to reprisal or that the actions of the Agency were severe or pervasive enough to establish a hostile work environment.
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
The Commission's regulations require an Agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who 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).
Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � 1630.2(n)(3).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we affirm the Agency's final decision. Even assuming for the sake of this appeal that Complainant could establish that at all relevant times she was an individual with a disability, she cannot establish that she was a qualified individual with a disability. We therefore agree with the Agency's conclusion that she was not a qualified individual with a disability, as defined under the Rehabilitation Act. See 29 C.F.R. � 1630.2(m) (defining a "qualified individual with a disability" as "an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position").
The evidentiary record reveals that Complainant's medical documentation dated December 23, 2011, indicated that she was limited in standing and walking to 30 minutes continuously for a maximum of 3 hours per day. She was also unable to walk or traverse on uneven terrain except on a very limited basis, possibly 10 minutes per day at most. The Agency also noted that a doctor's note dated January 20, 2012, indicated that she was able to comply with her work requirements, with some assistance, i.e., someone to occasionally accompany her for field survey work. This indicates that she was unable to perform the essential functions of her position because the performance of those functions would severely aggravated her knee and other conditions, and that there was no reasonable accommodation which would allow her to perform those functions because as the record showed that even with a volunteer there was a possibility that Complainant, as a Botanist, would have had to explore rugged steep locations in order to perform her duties. The Agency explained that while management agreed to adjust Complainant's core hours for a later start time and later end time, they could not allow her to work on the weekends because the botanist position required daytime work hours to coordinate with other employees, and field/work trips. The supervisor also agreed to situational telework for completion of certain document based assignments, but not every day, because they needed a fulltime Botanist to perform the work. We also note that the Agency attempted to locate a funded vacant position that Complainant could be reassigned to but no such position could be located.
Further, we also find that no evidence was presented that Complainant was subjected to reprisal. We note that there was no evidence presented that the MAD author was aware of Complainant's prior EEO activity and yet she also recommended denying Complainant's request for reasonable accommodation. Finally, we find that the record does not support Complainant's contentions that she was subjected to severe or pervasive incidents that established a hostile work environment when her emails were not answered or the letter was misdirected.
CONCLUSION
Therefore, the Agency's FAD which found that Complainant did not establish that she was denied a reasonable accommodation, subjected to reprisal and/or a hostile work environment 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 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
_8/23/16_________________
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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