Ralph E.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Nov 2, 2018

0120172561 (E.E.O.C. Nov. 2, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ralph E.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120172561

Agency No. CBP270962016

DECISION

On July 28, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 23, 2017 final decision concerning an equal employment opportunity (EEO) complaint
claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as an Officer at the Agency’s Pharr Cargo
Processing Center in Pharr, Texas.

On October 5, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him based on disability (obstructive sleep apnea) when, on May
10, 2016, management failed to respond to Complainant’s reasonable accommodation request.

The Agency accepted the complaint and conducted an investigation. The investigative record
reflects the following salient events relating to the subject claim.

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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In 2001, before beginning Agency employment, Complainant was diagnosed with Obstructive
Sleep Apnea.2

In February 2002, the Agency hired Complainant as an Officer at the Pharr Cargo Processing
Center, in Pharr, Texas. The facility is responsible for securing national borders against a variety
of matters, including contraband, while protecting legal trade. The facility operated from 6:00
a.m. to 12:00 a.m.

On May 10, 2016, Complainant submitted a reasonable accommodation request for a modified
work schedule of “a regular 40-hour work schedule of 8am to 4pm scheduled throughout a 7-day
administrative work week, along with 8am-4pm overtime assignments if necessary as assigned
by a CBP authority.”

Attached to his reasonable accommodation request, Complainant included a letter from his
physician. The physician’s letter stated as follows: “[Complainant is able to perform his required
work duties. However, I am requesting [he] be placed on an 8am to 4pm day shift at his place of
employment . . . until we get a better understanding of his sleep disorder.” Complainant also
included various progress notes and sleep studies entered by his physician from 2010 to 2013.

On August 18, 2016, Complainant participated with the Diversity and Civil Rights Officer
(DCRO) and the Labor and Employee Relations Officer (LERO) in a reasonable accommodation
interactive dialogue. During the dialogue, Complainant indicated that none of his medical
limitations interfered with his ability to perform his job functions. Complainant stated that he
had no suggestions regarding accommodations to improve his job performance. The dialogue
transcript noted that during the previous 10 weeks, Complainant worked only during the day
shift, except for voluntary overtime that he chose to work after his daytime shift ended. The
LERO stated during the dialogue that Complainant’s ability to swap shifts would continue while
his request was being processed.

On August 18, 2016, the DCRO issued Complainant a letter requesting medical information
from Complainant’s physician. The letter included a copy of Complainant’s position description
and requirements, and asked that Complainant’s physician answer the attached questions and
identify any restrictions on Complainant’s ability to fulfill some or all of his duties.

Complainant’s physician submitted a response dated September 12, 2016, stating,
“[Complainant] is able to perform his required work duties. It would be greatly appreciated for
[Complainant] to be accommodated and placed on an 8am to 4pm day shift at his place of
employment due to his sleep disorder/sleep apnea condition.”

On January 23, 2017, the DCRO submitted a letter to Complainant requesting additional medical
documentation from Complainant’s physician.

2 We presume, for purposes of analysis only, and without so finding, that Complainant is an
individual with a disability.
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The letter included a copy of Complainant’s position description and requested that
Complainant’s physician respond to specific questions regarding Complainant’s position
description and requirements, as well as Complainant’s specific diagnosis. The letter also
requested that Complainant’s physician specifically address “how an individual diagnosed with
sleep apnea is able to sleep without suffering pauses in breathing during nighttime hours but will
suffer from such pauses if sleep is attempted during the day.”

On March 29, 2017, Complainant was provided a response letter from the Agency to his request
for accommodation. The letter stated Complainant’s request for accommodation was denied
because Complainant did not provide sufficient evidence to support that his medical condition
substantially limited his ability to perform the essential functions of his position or explain how
an accommodation restricting him from working certain hours would improve his medical
condition.

After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination.

The instant appeal followed. Complainant did not raise any new contentions on appeal.

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. (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”).

Reasonable Accommodation

Under the Commission's regulations, a federal agency may not discriminate against a qualified
individual on the basis of disability and is required to provide reasonable accommodations to the
known physical and mental limitations of an otherwise qualified individual with a disability
unless the Agency can show that reasonable accommodation would cause an undue hardship. See
29 C.F.R. § 1630.2(o), (p). To establish that he was denied a reasonable accommodation,
Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. §
1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m);
and (3) the Agency failed to provide him with a reasonable accommodation.
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See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement
Guidance on Reasonable Accommodation). An individual with a disability is “qualified” if he or
she satisfies the requisite skill, experience, education, and other job-related requirements of the
employment position that the 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 that the
individual holds or desires. Id. § 1630.2(n).

A request for a modification or change at work because of a medical condition is a request for
reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question
1. After receiving a request for reasonable accommodation, an agency “must make a reasonable
effort to determine the appropriate accommodation.” 29 C.F.R. Part 1630, App. § 1630.9. Thus,
“it may be necessary for the [agency] to initiate an Informal, interactive process with the
individual with a disability . . . [to] identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. §
1630.2(o)(3); see also 29 C.F.R. Part 1630, App. § 1630.9; Enforcement Guidance on
Reasonable Accommodation at Question 5.

In this case, it is undisputed that Complainant is an individual with a disability within the
meaning of the Rehabilitation Act. It also is undisputed that Complainant met the requisite skill,
experience, education, and other job-related requirements of his position of record.

It is also evident in the record that the Agency engaged in an interactive process with
Complainant to process his reasonable accommodation request. Specifically, after Complainant
made his May 10, 2016 request, the Agency participated in an ongoing dialogue between August
2016 and March 2017, to find an appropriate solution.

During these ongoing discussions, Complainant repeatedly stated that he was “not having any
trouble performing any job functions,” and noted that his physical limitations did not interfere
with his job performance. Additionally, despite multiple requests, Complainant’s physician also
repeatedly provided vague responses, and noted that Complainant could perform the essential
functions of his position without any accommodations. In the latest note from Complainant’s
physician, dated September 12, 2016, the physician stated “[Complainant] is able to perform his
required work duties. It would be greatly appreciated for [Complainant] to be accommodated and
placed on an 8am to 4pm day shift at his place of employment due to his sleep disorder/sleep
apnea condition.” Complainant’s physician failed to respond to specific questions regarding
Complainant’s position description and requirements, as well as Complainant’s specific
diagnosis, or address how Complainant’s medical condition required him to only work certain
day time hours. The response was simply inadequate in explaining how a reasonable
accommodation could accommodate Complainant.

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The Agency also allowed Complainant to continue swapping shifts with other officers, which
appeared to be an effective solution to Complainant’s needs during the reasonable
accommodation discussions.

With respect to Complainant’s denial of reasonable accommodation claim, we find that, despite
Complainant’s claim to the contrary, the Agency was involved in the interactive process in trying
to provide Complainant a reasonable accommodation. The record reflects that Complainant, and
his physician, failed to appropriately respond to inquiries as to the specific need for a reasonable
accommodation. We note, specifically, that the Agency determined it did not get a substantive
response on the reasonable inquiry on the issue of show the request for daytime shifts only would
have a beneficial effect on Complainant’s medical condition. Based on the evidence provided by
Complainant and his physician, the Agency determined that there was no demonstrated need that
Complainant required a reasonable accommodation of specific day time assignments. We
concur with this conclusion and, as such, find no violation of the Rehabilitation Act when the
Agency denied Complainant’s request in March 2017.

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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.
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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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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
Carlton M. Hadden, Director
Office of Federal Operations
November 2, 2018
Date